Citation and Court Information
CITATION: Wang v. Li et al., 2024 ONSC 6720
DIVISIONAL COURT FILE NO.: DC-24-2871 - DC-24-2872
DATE: 20241206
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J.A Ramsay, Leiper and S. O’Brien JJ.
Parties and Counsel
BETWEEN:
Tianyun Wang Appellant
– and –
David Li The Ontario Landlord and Tenant Board Respondents
Alyn James Johnson
Richard Perry Macklin Morgana Kellythorne
HEARD: at Ottawa (by videoconference): November 15, 2024
Reasons for Judgment
BY J.A. RAMSAY J. (orally):
[1] This is an appeal under s.210 of the Residential Tenancies Act, 2006, SO 2006, c.17 and an application for judicial review. The appeal is limited to a question of law alone; the standard of review is correctness. The standard of review on the judicial review is reasonableness. The Board’s decision is published at 2024 ONLTB 10623. The decision on internal review, which upheld the decision at first instance, is published at 2024 ONLTB 19712.
[2] The sole question before the Landlord and Tenant Board was whether the Act applied to the relationship between the applicant and the respondent. The applicant/appellant said that she lived in the unit and shared a kitchen with the respondent, with the result that s.5 (i) of the Act exempted her from its application. The respondent testified that he shared a kitchen with the other residents, but the applicant/appellant did not live on the premises. She never stayed overnight. The applicant/appellant testified that she did live there, on weekends for the first six months and constantly thereafter. After a trial, the Board resolved the conflicting evidence by accepting the main feature of the evidence of the respondent, which was that the applicant/appellant did not live on the premises.
[3] The applicant seeks to introduce fresh evidence on the basis that evidence may be admitted on judicial review if there is an absence of evidence on a decisive point. The evidence consists of affidavit evidence clarifying her relationship with the University of Montreal, affidavit evidence clarifying her relationship with the real estate agency in Markham and the advertisement that led to the premises being rented. She also explains why she blocked out her face in photographs of her in the premises, with a new photograph that shows her clothes, so her identity is established. This is not material evidence on a point on which there was no evidence. It is just a late attempt at re-examination. In any event, the Board did not rely on the applicant’s employment in Montreal and Markham. It relied on the fact that she never stayed overnight at the premises. The advertisement only proves that the premises was advertised as a place shared with the owner. Whether the applicant actually lived there is another question. The photograph of the applicant with her clothes proves nothing more than that she was once in the residence.
[4] The applicant/appellant submits that the fresh evidence is also admissible on the appeal. But the Palmer test (1979 8 (SCC), [1980] 1 SCR 759) has not been met. The evidence is not of sufficient cogency that it might have affected the result and it could have been introduced at trial with due diligence. The decision of the tribunal was based on the respondent’s testimony that the applicant/appellant never stayed in the house. He was believed on that crucial point.
[5] The applicant/appellant says that the Board’s decision is unreasonable because the Board ignored evidence of the applicant/appellant’s driver’s licence which proved her address. The applicant/appellant testified that she was only traveling for work for the first six months in the sentencing. The fact that the two best bedrooms were vacant on the respondent’s evidence was implausible. The respondent said that he went to class and re-gave the classes were virtual during the pandemic. The respondent’s documents did not establish the applicant/appellant’s non residence. It was unreasonable to expect the applicant/appellant to include photographs of her belongings and it was unreasonable to accept the testimony of the respondent when it was contradicted by email evidence.
[6] There is no reason to believe that the Board did not take these features of the evidence into consideration or that it acted unreasonably in assessing them. It is not the function of this court on review or appeal to re-weigh the evidence.
[7] The applicant/appellant says that the Board erred in law in refusing to deal with the new evidence she offered on review. All of this evidence could have been entered at first instance with due diligence. The Board applied its test for internal review and correctly held that there was no serious error in the Board’s treatment of the evidence at first instance and the applicant/appellant had a reasonable opportunity to participate in the proceeding.
[8] The appeal and the application for judicial review are dismissed with costs to the respondent payable by the applicant/appellant at $17,290.32. No costs are ordered for or against the Board.
J.A Ramsay J.
Leiper J.
O’Brien J.
Released Orally: November 15, 2024
Released: December 6, 2024
CITATION: Wang v. Li et al., 2024 ONSC 6720
DIVISIONAL COURT FILE NO.: DC-24-2871
DATE: 20241206
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J.A Ramsay, Leiper and S. O’Brien JJ.
BETWEEN:
Tianyun Wang Appellant
– and –
David Li The Ontario Landlord and Tenant Board Respondents
REASONS FOR JUDGMENT
Released Orally: November 15, 2024
Released: December 6, 2024