CITATION: McEwen v. Shim, 2024 ONSC 6450
DIVISIONAL COURT FILE NO.: 611/24 DATE: 20241119
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
CAROL MCEWEN
Kat Jia Ying, for the Appellant
Appellant (Tenant)
– and –
SUE WEE SHIM
Tamar Friedman, for the Respondent
Respondent (Landlord)
HEARD at Toronto: November 19, 2024
(by videoconference)
REASONS FOR DECISION
FL Myers J. (Orally):
[1] The tenant appeals an eviction order made by the Landlord Tenant Board dated August 8, 2024. The board deferred the tenant’s eviction to November 30, 2024.
[2] The eviction was based on the landlord proving that she intends in good faith to live in the rental unit herself for a year or more under s. 48 of the Residential Tenancies Act 2006, SO 2006 c 17.
[3] The tenant submits:
a. (1) the board erred in law by failing to consider all the relevant evidence and expressly balancing the circumstances of the parties to find that it was just or not unjust to evict the tenant as required by s. 83 of the statute;
b. (2) the board erred in failing to find under section 81(3)(c) of the statute that the eviction was primarily a retaliation for the tenant disputing the landlord’s effort to increase rent beyond the legal maximum in May of 2022; and
c. (3) the hearing was unfair because the board was biased and did not approach the issues with an open mind. To that end, the tenant relies upon a press release concerning the member’s background and several interventions by the member during the hearing which the tenant asserts revealed a pre-disposition.
[4] The appeal is under s. 210 of the Residential Tenancies Act. The court is limited to intervening on questions of law alone under that section. Where a board makes a discretionary decision, the court must defer unless the board has made an error in principle or was clearly wrong in the exercise of its discretion.
[5] I do not agree that the member failed to balance the circumstances in evidence in exercising the s. 83 discretion. This case was largely about the issue of whether the landlord was retaliating against the tenant for asserting her rights.
[6] The member recited the tenant’s evidence of a history of threats to evict her that accompanied prior rent increases. The member recited the tenant’s financial situation and difficulties seeking alternate accommodations. The member also considered and recited the landlord’s situation with no fixed place to live after recovering from a car accident and her desire to move beside her grandson in the adjoining unit.
[7] The member also considered and discussed a video of the May 2022 verbal altercation between the parties in which the landlord asked the tenant to leave and gave her one month’s rent as required under s. 48.
[8] Under the heading “Relief from Eviction”, the member turned to the exercise of the s. 83 discretion. Paragraph 36 of the decision recites the correct test. In paragraphs 40 and 41, the member refers back to the tenant’s issues reiterated by Ms. Ying today. The tenant had been there for a long time and can’t readily find alternatives.
[9] The member exercised discretion to defer the eviction to November 30, 2024 which the member decided was sufficient so that the eviction would not be unfair to the tenant. I do not see an error of law in how the board proceeded. There was no failure to consider or balance the relevant factors.
[10] In paragraph 34 of the reasons, the member made a finding of fact that the landlord was not retaliating by delivering the N12, on which this application was based in June of 2023.
[11] The tenant submits that the member erred in law by failing to consider two prior N12 applications served by the landlord postdating the May 2022 altercation.
[12] The tenant submits that the N12 delivered in June 2023 was not a fresh N12 one year after that disagreement. Rather, it was a third effort in a continuous and concerted strategy by the landlord to evict the tenant due to the rent disagreement.
[13] The tenant submits that it is an error of law to misapprehend the evidence or to fail to consider the relevant evidence of the two prior N12’s served by the landlord.
[14] I disagree. The tenant’s evidence was clear. Retaliation was at the forefront of this case. In paragraph 21 of the decision, the member recites the tenant’s evidence about four prior N12’s associated with rental discussions.
[15] One must read the reasons of the member as a whole. The finding of fact in paragraph 34 was not isolated. The member grappled with the issue of retaliation and I agree with Ms. Mulima that on a fair reading of the record, the member was saying that the N12 before him in this case was sufficiently removed from the rent increase dispute, despite the evidence already recited earlier in the decision. This led to a finding of fact by the member that the final N12 was not a retaliation based on all the facts, including the landlord’s good faith.
[16] I acknowledge that a landlord can be in good faith and commit a retaliatory eviction. Nothing about that possibility appealed to or convinced the member.
[17] Under s. 210, the court is not entitled to review the member’s findings of fact and, absent an error of law, the finding of fact in paragraph 34 stands. Therefore, there can be no error by failing to consider the mandatory preclusion of eviction due to retaliation under s. 83 (3)(c) because the retaliation did not exist as a matter of fact in this case.
[18] I did not call on the landlord’s counsel to make submissions in relation to the press release that impugns the member’s neutrality. The press release is hearsay. It cannot be admitted for the truth of its content absent an exception to the hearsay rule. None was recited by counsel for the applicant.
[19] Relevancy alone is not a basis to admit hearsay in the absence of a principled exception or another recognized exception. There is no point then considering the Palmer test because the evidence could not be admissible even if diligence and importance could be established.
[20] More generally, this hearing took almost two-and-a-half hours. The tenant’s counsel acknowledges that her evidence meandered. In fact, below, her counsel struggled in chief to keep her moving forward and staying in focus. The member intervened to keep the case on track.
[21] It is incorrect to assert that he hurried the parties inaptly. This hearing was five times longer than the budgeted 30-minute length of a typical case. The tenant’s counsel ended her questioning herself. She was not prevented from continuing.
[22] I most firmly reject the submission that a member saying, “I understand your point; move on” can amount to a prejudgment of the issue. Ms. Ying submits that the member can’t know what evidence is coming next when he says, “I understand” unless he has already decided the issue.
[23] I wholeheartedly disagree.
[24] This witness meandered into repetition and down tangents that were not the subject of the questioning from her own counsel. There is nothing untoward about the member controlling the process before the board by cutting off repetitive and meandering testimony to try to help the witness be responsive.
[25] I agree with Ms. Friedman that in most, if not all the cases, the member heard the answer proffered by the witness before engaging. It was the member’s positive duty to manage the process to be fair to all. It can be a difficult task to do so while evidence is still being adduced. But nothing said by the member in this case provides a hint of prejudgment in my view.
[26] There is no realistic issue of bias or lack of procedural fairness raised on the facts of this case. The subjective and objective review of whether justice was done before an impartial tribunal, and justice was seen to be done, is readily met. Nothing pointed to by the tenant’s counsel gives a prima facie basis to consider the contrary.
[27] The appeal is therefore dismissed.
FL Myers J.
Oral Reasons Released: November 19, 2024
Written Endorsement Released: November 22, 2024
CITATION: McEwen v. Shim, 2024 ONSC 6450
DIVISIONAL COURT FILE NO.: 611/24 DATE: 20241119
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
CAROL MCEWEN
Appellant
– and –
SUE WEE SHIM
Respondent
ORAL REASONS FOR DECISION
FL MYERS J.
Oral Reasons Released: November 19, 2024
Written Endorsement Released: November 22, 2024