Court File and Parties

CITATION: Antler v. Carter, 2024 ONSC 6407

COURT FILE NO.: DC-24-2213-0000

DATE: 20241119

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Edward Antler and Rita Antler, Appellants

AND:

Landlord and Tenant Board

AND:

Albert Carter and Eva Carter, Respondents

BEFORE: Shore J.

COUNSEL: Rita and Edward Antler, self-represented

Joseph Maruccio, for the Respondent

HEARD: October 15, 2024

ENDORSEMENT

[1] Antler et al. (the "Tenants," or "Appellants,") appeal the decision of the Landlord and Tenant Board (the "LTB" or the "Board") under s. 210 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the "Act").

[2] Section 210 of the Act provides that a litigant has the right to appeal a decision of the Board to the Divisional Court, but only on a question of law.

Preliminary issue - Fresh Evidence:

[3] The Applicants brought a motion at the commencement of the appeal to introduce fresh evidence by way of a new affidavit. The Applicants want to use the new affidavit to inform the court of what occurred during the hearing and to support their position that there was a lack of procedural fairness. However, the transcripts of the hearing were filed as part of the appeal record. The Court had the benefit of the transcript and does not need separate affidavit evidence to know what occurred during the hearing.

[4] The documents that were not part of the LTB's proceeding can only be considered on appeal if they meet the criteria for fresh evidence on appeal as explained in Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759 ("Palmer"):

(a) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.

(b) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial,

(c) The evidence must be credible in the sense that it is reasonably capable of belief.

(d) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result (Palmer, at p. 775)

[5] In this case, the Applicant is seeking to adduce new evidence, not fresh evidence. Regardless, the Palmer test still applies: see Barendregt v. Grebliunas, 2022 SCC 22.

[6] The transcripts are both more credible and reliable than an affidavit informing the court what occurred during that same hearing. The affidavit serves no other purpose. The new evidence fails the third part of the Palmer test.

[7] The motion for fresh evidence is dismissed.

Background:

[8] There is a lengthy history in this case. I am only going to provide the basic facts to understand the appeal before this Court.

[9] The original owners of land in Northern Ontario rented part of their property to the Appellants. The original owners of the land then sold the property to the Respondents. The Respondents initially permitted the Appellants to remain on the property, and then they did not. Litigation ensued.

[10] The Appellants filed a T2 Application About Tenant Rights with the LTB. On May 5, 2023, the LTB heard the application. The Appellants submitted that they had a leasehold interest in the property and their residence on the land is not seasonal or temporary, and therefore they are protected by the Act.

[11] The Appellants and their Legal Representative attended the original hearing. The Respondents were not present. On May 15, 2023, the LTB issued an order and granted the Appellants' application.

[12] On May 30, 2023, the Respondents requested a review of the order, submitting, among other things, that they did not receive the notice of hearing. On June 1, 2023, the LTB issued an interim order, resulting from the preliminary review the Respondents requested. The interim order stated that the May 15, 2023, order should be stayed. The LTB directed the matter to a review hearing.

[13] At the review hearing, the LTB granted the Appellants' review request, and as a result, a de novo hearing was held to consider the application.

[14] The question before the LTB was whether the Act applied to this case, because s. 5(a) specifically provides that the Act does not apply to:

living accommodation intended to be provided to the travelling or vacationing public or occupied for a seasonal or temporary period in a hotel, motel or motor hotel, resort, lodge, tourist camp, cottage or cabin establishment, inn, campground, trailer park, tourist home, bed and breakfast vacation establishment or vacation home.

[15] The Respondents submitted that the lease was for a parking spot for the Appellant's motor home for the summer. Thus, the Act did not apply.

[16] The Appellants submitted that the exemption did not apply because the property rented was more than just a seasonal rental or vacation home. The Appellants had leased the property for a period of ten years.

[17] In the decision, dated December 11, 2023, the LTB found that the Act did not apply as a result of s. 5(a), and therefore, they did not have jurisdiction to hear the matter.

[18] The Appellants requested a review of the decision. A preliminary review of the Appellants' request was conducted without a hearing. On March 18, 2024, an order was released denying the Appellants' request. The LTB was not satisfied that there was a serious error in the hearing or the proceedings.

[19] The Appellants appeal this decision.

[20] The Appellants submit that:

(a) The Board made an error in law in finding that the Act does not apply to this case under s. 5(a).

(b) The Appellants were denied procedural fairness because the Board made an error in law by failing to consider the Matthews v. Algoma Timberlakes Corporation, 2010 ONCA 468, 102 OR (3d) 590 ("Matthews") decision and did not permit them to make legal submissions at the hearing.

(c) The Board was biased.

[21] The appeal is dismissed based on the following findings:

(a) I find that the Tenants' appeal is based on a finding of mixed fact and law and may not be appealed to this Court. There is no inextricable error of law.

(b) I find that there was no denial of procedural fairness. The Board did not err in failing to consider the Matthews case. In any event, the case is easily distinguishable from the facts before the Board and would not have changed the outcome of the case. The Board is to be given deference in applying its own policies and procedures.

(c) There is no evidence that the Board was biased.

The Application of s. 5(a) is a finding of fact:

[22] The threshold issue determined by the LTB was whether the Act applied to the case. The Board found that the Act did not apply to the case. As such, the LTB did not have the jurisdiction to hear the matter.

[23] The threshold question before the Divisional Court is whether the Court has jurisdiction to hear the appeal.

[24] Section 210 of the Act provides that a party can only appeal a decision on a question of law.

[25] This Court does not have the jurisdiction to hear an appeal from an LTB order on a question of fact or mixed fact and law: see Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.), at paras. 31-33; Devenne v. Sedun, 2020 ONSC 6141 (Div. Ct.), at para. 26-37; Smith v. Youthlink Youth Services, 2022 ONCA 313, at paras. 16, 31; and Ieraci v. Parsons, 2024 ONSC 2013 (Div. Ct.), at para. 45.

[26] The distinction between questions of law, fact, and mixed fact and law was explained in Canada (Director of Investigation & Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 SCR 748, at para. 35 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 satisfy the legal tests.

[27] The LTB identified the correct legal test. The issue before this Court is whether the facts satisfy the legal test.

[28] The Court has repeatedly found that the LTB's determination of whether a specific exemption listed in s. 5 of the Act applies to a rental unit is a question of mixed fact and law, and cannot be raised on appeal, absent an extricable error of law: Wong v. Hsiao, 2022 ONSC 3253 (Div. Ct), at para. 8; Zeta Psi Elders Association of Toronto v. Kavanaugh, 2022 ONSC 4142 (Div. Ct), at paras. 2-4; and McKnight v. Kirk, 2022 ONSC 3617 (Div. Ct), at para. 17.

[29] The LTB determined that the Act does not apply to the relationship between the parties. Rather, the parties' agreement concerned a parking space used by the Appellants for their motorhome on a temporary basis, which is subject to an exemption contained in s. 5(a) of the Act (set out in paragraph 14 above). As a result, the LTB found that it lacked jurisdiction to consider the Appellants' Tenant Rights (T2) Application filed against the Respondents.

[30] The LTB's finding is a one of mixed fact and law. The Appellants do not have a right to appeal this decision on the application of s. 5. This appeal must be dismissed.

Procedural Fairness:

[31] The Appellants submit that they were denied procedural fairness because:

(a) They were not given an opportunity to challenge the testimony of the Respondent's daughter;

(b) They were not permitted to make legal argument; and

(c) The Board failed to consider Matthews.

[32] The Supreme Court of Canada confirmed in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 DLR (4th) 328 that, on a statutory appeal, appellate standards of review apply to questions of procedural fairness. The standard of review on questions of procedural fairness is correctness.

[33] The content of the duty of fairness is based on the factors from Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 ("Baker") which include:

(a) The nature of the decision being made, and the process followed in making it;

(b) The nature of the statutory scheme and the terms of the statute pursuant to which the body operates;

(c) The importance of the decision to the individual or the individuals affected;

(d) The legitimate expectations of the person challenging the decision; and

(e) The choices of procedure made by the agency itself.

The Court held that this was not an exhaustive list: see Baker, at para. 28.

[34] The requirements of procedural fairness are context-specific and incorporate respect for the LTB's choice of procedure. The LTB has the authority to control its own process in accordance with s. 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA") and its Rules. The Act permits the LTB to conduct inquiries it considers necessary before, during, or after a hearing and to question any person concerning the dispute. The Act does not restrict the LTB's ability to control its process, other than to direct that the LTB adopt the most expeditious procedures that allow for a fair process.

[35] If there are multiple procedural options that all meet the minimum requirements of fairness, this Court should not interfere with the LTB's choice from among those options. Absent an extricable question of law, this Court should also not interfere with the LTB's findings of fact that underlay its conclusion on procedural fairness.

[36] The Appellants were given an opportunity to cross-examine the Respondents' daughter. The LTB only interfered to keep the questioning focused on the issues before the Board. The LTB is entitled to control its own process and is entitled to deference in exercising its discretion on procedural matters.

[37] The LTB's authority to control its own process includes the ability of its members to ensure that its hearings, in accordance with s. 183 of the Act, proceed as expeditiously as possible without compromising fairness. This includes a member's ability to interrupt a party, provide direction to ensure that the hearing is conducted in an efficient manner, define, and narrow the issues to be decided, limit the evidence and submissions on any issue where there has been full disclosure, and question parties to focus the issues and the related evidence on relevant matters: See the SPPA, and the Act.

[38] The Member advised the parties that she did not need to hear from them further because she could make her findings by relying on the evidence from the Appellants. The answer was self evident on the Appellants' own testimony. I find there was no denial of procedural fairness by limiting the Appellants' cross-examination or their ability to make legal argument in these circumstances.

[39] The Appellants submit the Board erred in law by not considering the Matthews case. In that case, the Ontario Court of Appeal addressed the interpretation of s. 5(a). However, the facts of that case are easily distinguishable from the case before this Court. In Matthews, the tenants erected cottages that were used as year-round second homes. The case is easily distinguishable, and I find no error in law.

[40] Even if the Board errored in failing to consider the case, the Ontario Court of Appeal has held that errors that are inconsequential or do not result in a substantial wrong or miscarriage of justice are insufficient to justify a rehearing.

[41] I find that there was no denial of procedural fairness.

Bias:

[42] The Appellants submit that they were denied a fair hearing because the Member hearing their request for a review was biased.

[43] The test for a reasonable apprehension of bias requires a "real likelihood or probability of bias": Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793, at paras. 58-65. It is not bias for an adjudicator to interpret evidence or make decisions adverse in interest to a litigant. It is well established that "[b]y itself, an adverse decision does not rebut the strong presumption of impartiality": Taucar v. Human Rights Tribunal of Ontario, 2017 ONSC 2604 (Div. Ct), at paras. 84-85.

[44] The grounds for finding bias or a reasonable apprehension of bias must be substantial and require cogent evidence to rebut judicial impartiality's strong presumption.

[45] Having reviewed the transcript of the hearing, as well as the decision from the Board, there is no evidence of bias.

[46] The Appellants were offended that the Member referred to their motor home as a brown bus, but that does not come close to meeting the level needed to show bias.

[47] The Appellants were offended by the way the Member told people in the virtual courtroom that they were not permitted to speak, but again, I see no evidence of bias.

Costs:

[48] Neither the LTB nor the Appellants are seeking costs of the motion.

[49] The Respondents are seeking costs in the sum of $10,000. However, contrary to the Practice Direction, the Respondents failed to upload a bill of costs prior to the hearing. I am therefore not prepared to make an order in the sum of $10,000.

[50] The Appellants shall pay the Respondents the costs of the appeal in the sum of $5,000 inclusive.

Shore J.

Date: November 19, 2024