CITATION: Clark v. Mamo, 2024 ONSC 5773

OSHAWA DIVISIONAL COURT FILE NO.: 23/1431

DATE: 20241004

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: )

TROY CLARK ) Douglas Spiller, for the

) Appellant/Tenant

Appellant/Tenant )

-and- )

VICTOR MAMO ) Delaram M. Jafari, for the

) Respondent/Landlord

Respondent/Landlord )

) Eli Fellman, Counsel for the ) Landlord and Tenant Board

) HEARD: October 4, 2024

REASONS FOR DECISION

WOODLEY, J.:

[1] The Appellant, Troy Clark, (the “Tenant”), appeals the eviction Order of the Landlord and Tenant Board (the “LTB”) dated August 25, 2023, made by Member Fabio Quatrociocchi and the Review Order dated November 10, 2023, of Member Emily Robb which found that the Tenant did not meet the test for a review and affirmed the eviction.

[2] The Tenant further appeals the finding of the Landlord and Tenant Board Vice Chair Robert Patchett of November 6, 2023, that there was no misconduct or reasonable apprehension of bias on the part of Member Emily Robb during the October 23, 2023, Review Hearing.

Facts

[3] The Tenant is the occupant of the premises located at Unit 1 Upper 56 Bernick Dr., Barrie, Ontario, L4M 2V5. The Tenant has resided at the said premises since approximately September 1, 2021.

[4] The rent due by the Tenant for the occupation of the premises is $1,500 per month.

[5] On September 1, 2021, the Tenant paid a rent deposit of $700 and thereafter paid the required monthly rent of $1,500 for the period September 1, 2021, to November 1, 2022.

[6] On December 1, 2022, the Tenant failed to pay the required monthly rent of $1,500.

[7] On January 1, 2023, the Tenant failed to pay the required monthly rent of $1,500.

[8] On January 3, 2023, the Landlord’s legal representative, C. Weatherston, served a N4 Notice of Termination of Tenancy on the Tenant by ordinary mail.

[9] In June of 2023, the Landlord and Tenant Board (LTB) mailed the Notice of Hearing to the Landlord, the Tenant, and the Tenant’s representative Kimberley Brock, providing notification of a virtual hearing scheduled for August 14, 2023, at 1 pm.

[10] On August 3, 2023, the Landlord’s representative sent a L1, L9 Update which enclosed the notice of hearing sent via regular mail to the Tenant.

[11] On August 14, 2023, a virtual hearing was conducted by Member Quatrociocchi in accordance with the Notice. Neither the Tenant nor the Tenant’s representative Kimberley Brock attended at the hearing.

[12] By Order dated August 25, 2023, Member Quatrociocchi determined that the Tenant owned $12,151.40 in rent arrears as of the date of the hearing. The August 25, 2023, Order, notes that the Tenant was served with notice of the hearing by the LTB but did not appear.

[13] On August 30, 2023, the Tenant requested a review of the August 25, 2023, Order, claiming that he never received the August 14, 2023, Notice of Hearing.

[14] By Interim Order dated September 5, 2023, Member Lang stayed the August 25, 2023, Order and directed the matter to a review hearing to: (a) determine whether the Tenant was not reasonably able to participate in the proceedings that took place on August 14, 2023; and (b) whether a new hearing should be held on the merits of the original L1 application.

[15] On October 23, 2023, a review hearing was conducted by Member Robb in the presence of both parties and their respective legal representatives as directed by Member Lang.

[16] At the October 23, 2023 review hearing, the Tenant alleged that: (a) it was his belief that the Landlord purposefully took the Tenant’s mail in regards to the application and notice of hearing; and (b) that the Landlord exhibited bad faith conduct by sending a text message following the hearing stating: “Well you missed the hearing as it was yesterday and you will be evicted very soon” …As for the AC, I have no money to pay the bills so I turned it off it’s not a game”; and (c) that the Landlord used an “out of date” email for the tenant in her L1 application dated January 25, 2023 and “accordingly the Tenant would not have received any Notice of Hearing from the LTB sent via email”.

[17] At the commencement of the October 23, 2023 review hearing, the Tenant’s former representative Ms. Brock was removed from the record and was replaced by representative Mr. Mula who requested that the matter be held down to allow him an opportunity to review the file as he had just been retained that morning. Member Robb advised that she first needed to deal with the removal of Ms. Brock following which Member Robb “held down” the matter. When the matter returned, Mr. Mula did not request further time for review.

[18] At the commencement of the review hearing, Member Robb explained that she would first deal with the Tenant’s reason for the review request and would then determine the review request. If the review was denied she would seek submissions regarding lifting the stay. If the review was granted the parties would proceed to a merits hearing.

[19] Member Robb explained that the review was the Tenant’s request to review as the Tenant alleged that they weren’t reasonably able to participate. Member Robb requested that the Tenant’s representative lead his client through some questions about the request review. The Tenant’s representative then proceeded to “swear in” the Tenant which the Member pointed out was not appropriate. The Tenant’s representative then asked the Tenant to refer to the N4 Form and Member Robb (again) directed the Tenant to address the request for the review – specifically to review the facts alleged by the Tenant that he did not receive notice of the hearing because the landlord takes mail and/or there was an issue with the mail delivery. Member Robb directed the Tenant and his representative that this is the issue they should be focusing on for the purpose of the review.

[20] The Tenant advised Member Robb that he had never seen the Landlord remove his mail – it was his neighbour. The Tenant advised that the neighbour had provided a letter. Member Robb advised that the letter does not afford the Landlord the opportunity to cross-examine and as such not much weight would be put on it. Member Robb asked the Tenant if he had requested that the neighbour attend to provide testimony the Tenant advised “she can be on the phone and she said no problem.” The Tenant further stated, “I just need to find a way that this lady can call in and speak”.

[21] Member Robb advised, “the hearing’s today, and being prepared is your responsibility”. At no time prior to or during the hearing was there any request by the Tenant’s representative to adjourn the matter to enable the neighbour to attend and/or to hold down the matter to have the neighbour testify and/or to provide a Zoom link for the neighbour to join the hearing. The representative did not, in fact, make any submission relating to the neighbour’s ability to attend the hearing.

[22] With respect to the reason sought for the review, the Tenant advised Member Robb that he had never received notice of the August 13, 2023 hearing. The Tenant stated that he had only received a prior handwritten N4 on January 2, 2023 and had not received anything further relating to the N4 served by Ms. Weatherston by ordinary mail.

[23] After Member Robb advised that the Board mailed the notice of hearing to the tenant on June 16, 2023 to the Tenant’s address and to the Tenant’s (former) representative, the Tenant confirmed that he had received mail from the Board in his mailbox dated June 8, 2023, on or about June 12, 2023. However, the Tenant denied receiving the L1, L9 update sent by Ms. Weatherston and stated that he didn’t receive anything after receipt of the June 8, 2023 document.

[24] When questioned how he received the August 25, 2023 Order (regarding the August 13, 2023 hearing) the Tenant stated that he was advised that he missed the hearing by the Landlord and as for the Order stated “I think Jim got it off the website for me at some point. I told him what happened and I gave him the – I believe. I’ve had so many silly things happen. I don’t know. Like, this is – all I know is I never got a darn hearing thing or I would have been there. I have no issues making a payment plan or payments…”.

[25] Member Robb redirected the Tenant to the issue at hand whether he was reasonably able to participate on August 13, 2023 and the Tenant repeated that he received the June 8, 2023 letter from the Board and denied that any documents emailed to him by the Board reached him. The Tenant confirmed that his former representative requested the order “because I told her I didn’t have it so she requested it”.

[26] When asked by Member Robb if the Tenant was alleging the Landlord took his notice of the hearing from his mailbox, the Tenant stated “I’m not saying that he took it. I’m saying he was observed going through my mail. I don’t know what he took out of my mail. All I know is I never got it ma’am. And he was observed going through my mail, taking mail out of my box on several occasions. I was told by neighbours”.

[27] During cross-examination the Tenant advised that he had asked the Landlord to check his mail for him on several occasions and that the Landlord also asked him to check his mail “I don’t take things out of his box though”.

[28] Member Robb specifically questioned the Landlord as to whether he had ever at anytime in May, June, or July had taken any mail out of the Tenant’s mailbox and the Landlord replied that he has “never taken any piece of mail out of his mailbox. I have went through the mailbox because our mail gets mixed in together and if anything belongs to him, I leave it in his mailbox”.

[29] After hearing the testimony of the Tenant and the Landlord and the submissions of the representatives for each, Member Robb dismissed the Tenant’s review request and advised that reasons would follow in her written order.

[30] As for lifting the stay, the Landlord confirmed that the tenant hadn’t made any payments on account of rent since November 2022 and arrears were $16,500 plus $186 filing fee for a total of $16,686. The Landlord asked the stay be lifted immediately and the Tenant asked for two months till the end of December 2023.

[31] By Order dated November 10, 2023, Member Robb determined that the Tenant did not satisfy the Member that the Tenant was not reasonably able to participate in the August 14, 2023, proceedings.

[32] By Order dated December 1, 2023, on consent Justice Charney ordered that the Tenant:

a. shall pay his monthly rent of $1,500.00 on the first day of each month commencing December 1, 2023, failing which the stay of the enforcement of the eviction order of the LTB shall be lifted. The rent payments shall be made by direct deposit to the Landlord’s account or in some form that proof of payment can be provided to the Court;

b. shall pay $1,000 per month toward the rental arrears on the 20th day of each month commencing January 20, 2024, failing which the stay of the enforcement of the eviction order of the LTB shall be lifted. Payment shall continue until arrears ($18,000) are paid or the Appeal is heard.

[33] The Tenant has paid the rental arrears as per Justice Charney’s December 1, 2023 Order such that as at today’s date $9,000 remains outstanding on account of rental arrears.

POSITIONS OF THE PARTIES:

[34] The Tenant alleges that the October 23, 2023 review hearing conducted by Member Robb was procedurally unfair to the Tenant due to the following:

a. The Member refused to permit the Tenant’s representative to swear in the Tenant and declared his efforts to do so as “inappropriate”.

b. The Member did not permit the Tenant’s representative to draw attention to the Tenant’s evidence filed at the outset of the examination in chief.

c. The Member did not allow the Tenant “an indulgence” to allow a witness to “call into the hearing to testify” and this “unfairly denied the Tenant his right to meaningfully participate”.

d. The Member did not allow the Tenant’s representative to cross-examine the Landlord on the issue of whether the Landlord removed mail from the Tenant’s mailbox and on the issue of bad faith of the Landlord.

[35] The Tenant further alleges that Member Robb exhibited a reasonable apprehension of bias against the Tenant’s representative and the Tenant and accorded bias in favour of the Landlord and his representative as detailed by the Complaint lodged by the Tenant’s representative following the review hearing.

[36] The Tenant claims that “as a result of repeated interference with the efforts of the Tenant’s representative to present his case for the Tenant, the Tenant was denied the right to full participation in the hearing and the hearing was procedurally unfair to the Tenant.

[37] The Tenant submits that lack of procedural fairness and reasonable apprehension of bias constitute errors of law which resulted in Member Robb failing to comply with her duty to consider all factors regarding section 83 of the Residential Tenancies Act, 2006 (“RTA”).

[38] The Landlord denies that there was procedural unfairness or bias present in the proceedings and denies that Member Robb applied the wrong test to the review. The Landlord seeks a dismissal of the appeal.

[39] The Landlord and Tenant Board made no submissions regarding the facts in dispute and limited their submissions to the statutory and procedural context relevant to the appeal which submissions included the following information:

The LTB is a high-volume tribunal that received 63,208 applications in the 2022-2023 fiscal year. The LTB is required to adopt the most expeditious method of determining the questions arising in a proceeding that affords to all parties directly affected by the proceeding an adequate opportunity to know the issues and to be heard on the matter.

THE LAW AND ANALYSIS

[40] A person affected by an Order of the Landlord and Tenant Board (“LTB”) has a statutory right of appeal to the Divisional Court on a question of law. See s. 210 of the Residential Tenancies Act, 2006 (“RTA”).

[41] The standard of review on a question of law is correctness. However, the correctness standard does not detract from the need to respect the tribunal’s specialized function. See Housen v. Nikolaisen 2002 SCC 33 [2002] 2 S.C.R. 235 at para 8; and Planet Energy (Ontario) Corp. v. Ontario Energy Board, 2020 ONSC 598 (Div Ct).

[42] The determination of whether there has been a breach of duty of procedural fairness is a question of law subject to correctness review on appeal: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 40 D.L. R. (4th) at para 169.

[43] The distinction between questions of law, fact, and mixed fact was articulated by the Supreme Court of Canada as follows:

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 satisfied the legal tests. See Canada (Director of Investigation and Research) v. Southam Inc. Canada 1997 385 (S.C.C.) at para 35.

[44] Challenges to the LTB’s acceptance, rejection, and weighing of the evidence do not amount to questions of law. See Solomon v. Levy 2015 ONSC 2556 (Div Ct) at para 22; 2276761 Ontario Inc. v. Overall, 2018 ONSC (Div Ct) at para 29; Yang v. He, 2020 ONSC (Div Ct) at paras 9 – 10.

[45] Courts should be cautious in identifying extricable questions of law when considering appeals from the Board. The Board is a specialized tribunal and the legislature has deliberately limited appeals from its decisions to ensure that the process is streamlined, timely, and cost efficient. See Zolvnsk v. North Shore Farming Company Limited, 2016 ONS 2838 (Div Ct) at paras 7 – 8; and Christo v. Woon, 2017 ONSC 5127 (Div Ct) at para 19.

[46] Limiting appeals from an order of the LTB to questions of law is consistent with the legislature intent to minimize judicial interference in the LTB’s decision making. See Canada (Minister of Citizenship and Immigration) v. Vavilov at paras 23 – 24.

[47] A tribunal is required to conduct its proceedings fairly. The degree of procedural fairness required is determined by reference to all the circumstances of the case, including:

a. The nature of the decisions being made and the process followed in making it;

b. The nature of the statutory scheme;

c. The importance of the decision to the individuals affected;

d. The legitimate expectations of the person challenging the decision; and

e. The choices of the procedure made by the administrative decision maker itself.

See Baker v. Canada (Minster of Citizenship and Immigration) 1999 699 (SCC), 1999 2 S.C.R. 817 at paras 21 – 28.

[48] The LTB has the authority to determine its own procedure and practices and to establish rules and make orders for that purpose. See Statutory Powers Procedures Act R.S.O. 1990 (“SPPA”) s. S. 22, ss. 21.2 and 25.01 and 25.1

[49] Section 2 of the SPPA provides that the Act and any tribunal rules are to be “liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits”.

[50] Section 7 of the SPPA provides that a tribunal may proceed without a hearing in the absence of any party.

[51] Section 183 of the RTA states that the LTB should “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.

[52] The LTB’s Interpretation Guideline 1, under the paragraph “Failing to Attend the Hearing”, states: “Where the respondent fails to appear; a notice of hearing has been sent to the parties and the matter has not been adjourned or rescheduled, the Member will proceed with the hearing, and will make a decision based on the evidence provided by the applicant at the hearing”.

[53] Rules 1.4 and 1.6 of the LTB Rules of Procedure, allocates broad powers to the LTB with respect to the manner of proceedings, including:

p. Limit the evidence or submissions on any issue where satisfied there has been full and fair disclosure of all relevant matters.

q. Exercise its discretion to permit a party’s legal representative to give evidence where appropriate.

t. Refuse to consider a party’s evidence or submission where the party has not provided the evidence or submission to the LTB and the other parties as directed by the LTB.

u. Take any other action the LTB considers appropriate in the circumstances.

[54] Rule 1.4 of the LTB Rules of Procedure, states:

Powers of the LTB

1.4 The LTB will decide how a matter will proceed, may reschedule proceedings on its own initiative, may make procedural directions or orders at any time and may impose any conditions that are appropriate and fair.

[55] Rule 1.6 the LTB Rules provide that a Member may waive or vary any provisions of the Rules and may direct the order in which the issues will be considered and determined.

[56] In the present case, at the commencement of the August 25, 2023 hearing, Member Quatrociocchi noted on record that the Tenant was served by the LTB and that the Tenant was not present nor represented “although properly served with notice of this hearing by the LTB. There was no record of a request to adjourn the hearing. As a result, the hearing proceeded with only the Landlord’s evidence”. See Order of Member Quatrociocchi dated August 25, 2023. These findings were well within the rights and powers of Member Quatrociocchi as determined by the LTB Rules.

[57] Regarding whether Member Robb erred in law and procedural fairness by not allowing the tenant’s representative to swear in the tenant, section 15(1) of the SPPA states:

15 (1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation as evidence in a court,

(a) Any oral testimony; and

(b) Any document or other thing,

Relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

[58] Given the volume of LTB cases heard by the LTB each year, the LTB needs discretion and flexibility to conduct the hearings in a manner that the LTB Members deem appropriate – to ensure expeditious access to justice. There was no error in law and no procedural unfairness by allowing the Tenant to provide evidence without his evidence being sworn under oath. Further, there was no bias or apprehension of bias by the Member when she noted that it was “inappropriate” for the Tenant’s representative to attempt to “swear” in his client. The “inappropriate” comment was appropriate in the circumstances.

[59] The transcript discloses that Member Robb’s directions during the hearing constituted reasonable exercise of her discretion which was necessary to manage the conduct of the hearing.

[60] Pursuant to the LTB Rules, Member Robb was entitled to consider evidence from either party’s representative. In the circumstances, it was not an error in law for Member Robb to consider the evidence of the Landlord’s paralegal Weatherston that the Notice of Hearing was sent to the Tenant by Weatherston which evidence supplemented the evidence that the LTB also sent notice to the Tenant by ordinary mail.

[61] With respect to the Tenant’s argument that Member Robb breached procedural fairness by her conduct at the hearing, the LTB has broad discretion to manage its own process to ensure the most expeditious and fair determination of the issues in a proceeding.

[62] Having thoroughly reviewed the transcript of the proceeding I fail to see any evidence of procedural unfairness. The Tenant was provided with ample opportunity to present his case and/or to question the Landlord. The Tenant had ample opportunity to contact the “neighbour” to provide evidence by Zoom prior to the commencement of the hearing and should have had this aspect arranged (i) prior to the hearing; (2) when the matter was held down prior to commencement of the review. Further, despite the Tenant’s complaint, neither the Tenant nor his representative requested an adjournment or further time for any reason including any request to accommodate any witnesses. Member Robb proceeded expeditiously and fairly by directing the witnesses and the proceeding specifically towards the issues to be determined as mandated by the LTB Rules and the SPPA.

[63] As for the allegations of bias and/or apprehension of bias, again, having thoroughly reviewed the transcript of the proceeding I fail to see any evidence of bias or apprehension of bias. The record reflected that Member Robb was experienced and efficient. She clearly had a grasp of the issues to be determined and understood the test that needed to be applied with respect to the review. Member Robb assisted the Tenant’s representative to focus his questions as required by her mandate. The complaint filed by the Tenant’s representative, Mr. Mula, against Member Robb, and the allegation of bias contained in the Tenant’s notice of appeal relating to bias are completely unfounded and baseless.

[64] The transcript of the proceeding provides cogent evidence that Member Robb’s interjections were necessary to focus the hearing and the issues, were even-handed, were issue focused and not party focused. The Tenant’s representative chose not to clarify, re-direct, or call any other witness. The Tenant’s representative was not prohibited from cross-examining any witness and was provided with the opportunity to make detailed submissions. The fact that Member Robb, after considering all of the evidence, did not accept the Tenant’s statement that he was reasonably unable to attend the hearing does not mean that the Member was biased.

[65] Under s. 209 of the RTA the LTB’s power to review its own decision may be exercised if a party to a proceeding was not reasonably able to participate in the proceeding.

[66] The LTB’s procedure relating to a request to review a decision is found at Rule 26 of the LTB’s Rules of Procedure with additional guidance provided I the LTB’s Interpretation Guideline 8.

[67] As described in Interpretation Guideline 8, the LTB’s review process has two stages. The first is a preliminary review where the Member decides if the order made contains a serious error or whether the requestor may not have been reasonably able to participate. In either case the LTB may direct a review hearing on some or all the issues raised in the review request.

[68] In the present case, Member Lang conducted a preliminary review of the request and issued the interim order dated September 5, 2023, directing the request to a review hearing to determine whether the appellant was reasonably unable to participate in the proceeding.

[69] Member Robb was to determine whether the Tenant was reasonably unable to participate in the proceeding. Having considered all the evidence, Member Robb applied the test: whether the tenant established that he was not able to reasonably participate. The test in the circumstances was correct and is owed deference from this court.

[70] Having considered all the evidence, Member Robb determined that the Tenant did not establish that they were reasonably not able to participate. This finding was open to the Member to find based on the evidence.

[71] In the present case the Tenant has failed to demonstrate that there were any errors in law or procedural fairness nor did the Tenant demonstrate any grounds for his allegation of apprehension of bias as against Member Robb.

CONCLUSION AND DISPOSITION

[72] For the foregoing reasons, the appeal is dismissed in its entirety with costs in favour of the Landlord.

[73] The Tenant is required to vacate the premises on or before November 1, 2024.

[74] The Landlord is entitled to utilize the services of the Sheriff to assist with the eviction/removal of the Tenant and/or the property of the Tenant if the Tenant fails to vacate the premises on or before November 1, 2024.

[75] For the purposes of updating the original eviction Order of Member dated August 25, 2023, I note as follows:

a. Pursuant to Justice Charney’s Order dated December 1, 2023, and the payments made by the Tenant pursuant to that Order, the rental arrears owing as at today’s date are $9,000.00; and

b. The Tenant is required to vacate the premises on or before November 1, 2024.

[76] If costs are not resolved between the parties, the Landlord may serve and file their cost submissions limited to three pages (with any Bill of Costs and Offers to Settle attached thereto) within 30 days of today’s date.

[77] The Tenant may serve and file his cost submissions limited to three pages (with any Bill of Costs and Offers to Settle attached thereto) within 45 days of today’s date.

[78] Any Reply is limited to one page to be served and filed within 50 days of today’s date.

Justice S. J. Woodley

Released: October 17, 2024

Date: October 17, 2024