Desbien v. Jiang, 2024 ONSC 895

CITATION: Desbien v. Jiang, 2024 ONSC 895

DIVISIONAL COURT FILE NO.: DC-22-2750

DATE: 20240212

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: LONNE DESBIEN, Appellant

-and-

JING JIANG, Respondent

BEFORE: Stewart, Myers, and Leiper JJ.

COUNSEL: David Danielson, for the Appellant

Haiyan Zhang, for the Respondent

HEARD at Ottawa (by Videoconference): February 5, 2024

ENDORSEMENT

[1] Mr. Desbien appeals the decisions of the Landlord and Tenant Board dated August 31, 2022 and the dismissal of the review of that decision dated October 4, 2022.

[2] The appeal is brought to this court as of right under s. 210 (1) of the Residential Tenancies Act, 2006, SO 2006, c 17.

[3] Appeals under that Residential Tenancies Act are limited to reviewing questions of law.

[4] Issues of procedural fairness are reviewed in this Court on a correctness standard through the lens of the factors set out in Baker v. Canada (Minister of Citizenship and Immigration). See: 1460973 Ontario Ltd. v. City of Toronto, 2023 ONSC 5213 at para. 18.

[5] Put another way, there is no standard of review analysis necessary with respect to the issue of procedural fairness; either the appellant was provided with procedural fairness, or he was not. Queensway Excavating & Landscaping Ltd v. Toronto (City), 2019 ONSC 5860, at para. 60.

[6] The appellant submits that he was denied a fair hearing because he was denied an adjournment to retain counsel.

[7] The Presiding Member below found that the appellant had ample time to retain and instruct counsel.

[8] The appellant submits that the Presiding Member erred by failing to consider whether any prejudice that might have been claimed by the landlord could have been ameliorated by an order for an adjournment with costs thrown away or an early, peremptory return date.

[9] Even if we assume without deciding that the appellant’s proposed fresh evidence is admissible, we see no error of law or denial of procedural fairness at any stage of the determination of this case by the Landlord and Tenant Board.

[10] The Landlord and Tenant Board has broad discretion to control its own process. The Board considered the positions of the parties, including that the landlord was present and ready to proceed, the appellant failed to act diligently in retaining counsel, and that he did not seek a rescheduling in advance of the hearing. We do not see any error by the Board in its consideration of the relevant factors, including prejudice to the appellant having been denied an adjournment and being required to proceed with the hearing.

[11] The appellant returned possession of the rented premises to the landlord before the hearing. The issues were monetary. The tenant does not contest the gross arrears owing. The unfairness, he claims, is in the loss of the opportunity to make his claim for money due to him as a setoff against the arrears he owes to the landlord.

[12] But the appellant retains the right to advance his claim for funds due to him by the landlord. He could have brought that claim before or after the Board’s decision. We note that the appellant made no effort on the reconsideration hearing to show that he had some evidence to present to answer the landlord’s claim.

[13] In Baker v. Canada (Minister of Citizenship and Immigration), at para. 21, the Supreme Court of Canada wrote:

…the duty of procedural fairness in administrative law is "eminently variable", inherently flexible and context-specific. Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that the duty imposes are determined with reference to all of the circumstances ...

[14] We are not persuaded that the process was unfair to the appellants in all the circumstances or that there has been any miscarriage of justice in this case.

[15] For these reasons, the appeal is dismissed.

[16] The respondent landlord did not provide a Cost Outline in advance of the hearing as required. In all of the circumstances, we consider it appropriate to make no order as to costs.

“Stewart J.”

“Myers J.”

“Leiper J.”

Date: February 12, 2024