Court File and Parties

CITATION: Vorobyev v. O’Shanter Development Company Ltd., 2025 ONSC 1251

DIVISIONAL COURT FILE NO.: 622/24

DATE: 20250228

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: OLEG VOROBYEV AND NINA VOROBYEVA, Appellants/Tenants

AND:

O’SHANTER DEVELOPMENT COMPANY LTD., Respondent/Landlord

BEFORE: Matheson J.

COUNSEL: Self-represented Appellants/Tenants

Ben Charlebois, for the Respondent/Landlord

HEARD at Toronto: February 26, 2025, by video-conference

Endorsement

[1] The appellants/tenants Oleg Vorobyev and Nina Vorobyeva appeal from an order of the Landlord and Tenant Board (the Board) dated September 10, 2024 (the Merits Decision), and related review order dated October 8, 2024 (the Review Decision).[^1] The Board granted the respondent/landlord’s application for termination of the tenancy for substantial interference with the reasonable enjoyment of the landlord and other tenants.

[2] The Merits Decision was made after a hearing that included the testimony of the appellant Oleg Vorobyev as well as testimony from another tenant and from the building manager. As set out in the Merits Decision, the Board found that the appellants had substantially interfered with reasonable enjoyment as alleged. In doing so, the Board considered the evidence and made findings of fact. The Board also gave some relief from the eviction under s. 83(1) of the Residential Tenancies Act by postponing the eviction until October 31, 2024.

[3] In the request for review, Mr. Vorobyev submitted that he had health issues and technical difficulties during the hearing and further submitted that there were legal errors and was a lack of procedural fairness. As set out in the Review Decision, the Member who conducted the review reviewed the recording of the merits hearing. The Member found that the tenants fully participated in the proceedings without difficulties. They had the opportunity to give evidence, cross-examine witnesses and make closing submissions. At no point did they advise the presiding Member of Mr. Vorobyev’s alleged health or technical issues, nor did they request an adjournment or accommodation. Mr. Vorobyev confirmed multiple times that he understood the process. Finally, the Board was satisfied that the Member presiding over the hearing fully considered the tenants’ request for relief from eviction, granting an extension, and provided sufficient reasons for finding that the tenants were in breach of the reasonable enjoyment of others.

[4] The tenants then brought this appeal. The right of appeal is limited to questions of law, which include issues of procedural fairness. The standard of review is correctness.

[5] It was apparent from the oral submissions in this Court that most of the appellants’ complaints are based on challenges to the factual findings of the Board. I acknowledge that the appellants do not agree with several of the factual findings. However, the right of appeal is limited. This Court does not have jurisdiction to interfere with factual findings unless they arise from a legal error or an unfair process.

[6] The appellants have raised issues that they submit are within this right of appeal, which I summarize as follows:

(i) the wrongful admission of hearsay evidence;

(ii) the failure to consider s. 83(3) of the Residential Tenancies Act;

(iii) prejudice and harassment on the basis of background and gender; and,

(iv) an alleged threat to remove Mr. Vorobyev from the hearing.

[7] The respondent has raised preliminary objections regarding these issues. First, the respondent submits that the appellants are attempting to raise new issues on appeal, which is not necessarily permitted. I will address this objection in context below.

[8] The respondent also objects to the appellants including only an excerpt of the transcript from the hearing, despite a request that they put forward a complete transcript. The appellants have only provided Mr. Vorobyev’s evidence up to but not including questioning by the respondent. They have not included the rest of the evidence or the submissions.

[9] The appellants may choose to proceed with only an excerpt of the transcript. That is their decision. However, the absence of the whole transcript is relevant to issues that they raise and has an impact on the appeal decision, as noted below.

[10] The appellants have also submitted documents that were not part of the evidence in the Board proceedings. The respondent objects because the appellants ought to have brought a motion with a supporting affidavit, and, in any event, must meet the limited circumstances under which a court will permit fresh evidence on an appeal. The documents appear to relate to factual matters outside the right of appeal and most if not all would have been available for use at the Board hearing. Even if these documents were properly submitted on a motion, it does not appear that they would satisfy the legal test to submit evidence at the appeal stage. They are not relevant to the issues that are within the limited right of appeal.

[11] Moving to the first issue on the appeal, the appellants submit that the Board ought not to have admitted hearsay evidence, such as evidence that another tenant, who did not testify, had complained. It does not appear that the appellants made this objection at the Board hearing. It is not referred to in the transcript excerpt. Further, the appellants have not put forward transcript evidence of other witnesses being permitted to give hearsay evidence. Even if they were, the Board may accept hearsay evidence as a tribunal governed by the Statutory Powers Procedure Act. Even if I were to permit this issue to be raised on this appeal, it would be unsuccessful.

[12] The appellants then submit that the Board erred in not considering s. 83(3) of the Act. That section provides that even if the landlord is otherwise entitled to an eviction, the Board must deny the landlord’s application where it is satisfied that certain serious circumstances have been proved. The appellants submit that s. 83(3)(a) applies because the respondent was in serious breach of its obligations, and that ss. 83(3)(b)(c) apply because the landlord’s application to the Board was “revenge” for complaints the appellants made to the City, to the Board and to the respondent.

[13] The record on this appeal does not show that the appellants raised s. 83(3) at the Board. The appellants have not included their oral submissions to the Board in their appeal record. Their written request for review did not refer to or seek relief under that subsection.

[14] The appellants submit that since the Member did refer to s. 83(1)(2) in the Merits Decision, she should have known that the appellants were relying on s. 83(3). There are problems with this submission.

[15] First, s. 83(2) requires that the Board consider whether to exercise its discretion under s. 83(1) where a hearing is held. It is mandatory. There is no requirement to consider s. 83(3). Further, s. 83(3) requires findings of serious misconduct. In contrast, s. 83(1) is a general discretion.

[16] Next, s. 82 of the Act requires that a tenant give advance notice to the landlord if the tenant intends to raise any issue that could be raised in a tenant’s application. It does not appear that that was done here.

[17] Given the nature of the issues that the appellants now seek to raise under s. 83(3), alleging substantial wrongdoing, the respondent rightly objects to s. 83(3) being raised for the first time on appeal. The nature and scope of the issues under that subsection means that the respondent ought to have had an opportunity to put forward evidence in response, at the hearing. It would be unfair to permit the issue to go forward now.

[18] Even if I did permit the appellants to raise this issue on this appeal, this ground of appeal would be unsuccessful. The appellants have not shown a legal error or unfairness regarding s. 83(3).

[19] The appellants have raised a related issue. They submit that Mr. Vorobyev was repeatedly cut off when he attempted to give evidence about his complaints about the landlord. The transcript excerpt shows that the Member set out the issues that were before her a few times, specifically the issues raised in the landlord’s application. She also noted a few times that the hearing was not addressing tenant issues and did not permit some evidence in that regard. The absence of the entire transcript means that I cannot put this excerpt in its full context. What I have does not show unfairness. In the circumstances shown on the appeal record, the Member was entitled to proceed on the basis that the tenant issues were not properly the subject of the hearing.

[20] The other issues raised on this appeal, suggesting prejudice and harassment and suggesting that there was threat to remove Mr. Vorobyev from the hearing, also appear to be new. Further, the evidentiary record does not show events that support the submission that these things took place. A full transcript would be an important foundation for the Court to consider such allegations and the appellants have not provided it. Leaving aside the issue that these issues are being raised for the first time, the appellants have not put forward an evidentiary foundation for these grounds.

[21] Therefore, none of the grounds of appeal are successful.

[22] On the subject of whether the appellants request a delay of the eviction if their appeal is dismissed, Mr. Vorobyev asked for as much time as possible, also mentioning six months from this court hearing. He had previously requested six months at the Board hearing that resulted in the Merits Decision. It has been almost five months since the Merits Decision, and the appellants could not assume that they would win their appeal. In all the circumstances, the respondent objects to any further delay. However, having regard for Mr. Vorobyev’s submissions, I will grant a further delay of the eviction until March 31, 2025.

[23] This appeal is dismissed without costs. The eviction shall not be enforced before March 31, 2025.

Matheson J.

Date: February 28, 2025

[^1]: Mr. Vorobyev made the oral submissions on behalf of the appellants, assisted by his son.