REASONS FOR DECISION

[1] The appellant tenant, Mr. Jabari Hunt, appeals from an Order of the Landlord Tenant Board (“Board” or “LTB”) issued on April 9, 2024, that terminated his tenancy and ordered that he move out of the rental unit, a condominium located 2212 Lakeshore Boulevard West, Toronto, on or before May 31, 2024. The Order was made on the grounds that the respondent landlord, Ms. Meaghan Trevisan, in good faith requires possession of the rental unit for the purpose of residential occupation for at least one year.

[2] Mr. Hunt requested a review of the Board’s decision on the grounds that it denied him procedural fairness by refusing to adjourn the hearing and by making numerous errors of law, including relying on the respondent’s allegedly “false unsworn statements”. On April 15, 2024, Mr. Hunt’s request to review was denied and he appeals from that Order as well.

[3] Mr. Hunt’s Notice of Appeal also named his girlfriend, Ms. Lydia Allen, as an appellant in this matter. However, as I explain below, Ms. Allen was not named in the Board’s title of proceedings, nor was she granted standing in this proceeding. I will generally refer to her by name as she is not a proper appellant in this appeal.

Background

[4] The respondents own the rental unit. In or about February 2022, they entered into a tenancy agreement with the appellant Mr. Hunt to occupy the unit. Ms. Allen did not sign the tenancy agreement.

[5] On July 12, 2023, the respondents served Mr. Hunt with an N12 Notice of Termination (the ‘N12 Notice’) with the termination date of September 30, 2023. Subsequently a Form L2 Application (Application to End a Tenancy and Evict a Tenant or Collect Money) was issued. The respondent Ms. Trevisan claims that she requires vacant possession of the rental unit for her own residential occupation.

[6] At the outset of the Board’s hearing, held by videoconference on February 15, 2024, it was noted that neither Mr. Hunt nor Ms. Allen were in attendance. Mr. Hunt’s counsel sought an adjournment which was dismissed by the Board for the following reasons:

The Tenant’s Representative requested an adjournment for four reasons. As explained below, I did not find the Tenant’s Representative’s arguments compelling and dismissed the adjournment request.

The first reason for the adjournment request was that the Notice of Hearing was sent to the Tenant but not the Tenant’s Representative. This is the common practice of the Landlord and Tenant Board (the ‘Board’) and is not a valid reason for an adjournment request. The Board is not aware of a party’s representative until the representative puts themselves on the record. In fact, per Rule A9.2 of the Board’s Rules of Procedure (‘Rules’), it is the representative’s responsibility to “provide contact information to the tribunal and be available to be contacted promptly. Representatives are responsible for conveying tribunal communications and directions to their client”.

The second reason was that the Tenant’s Representative did not have access to the Tribunals Ontario Portal (‘TOP’) until shortly before the hearing and was unable to upload evidence. It is common for parties to have technical issues and not have access to TOP; as such, the Board allows various alternate methods for service. Disclosure may be provided by any method allowed under the Residential Tenancies Act (2006) (the ‘Act’) or the Rules. In particular, a document may be filed with the Board in person, by mail or courier, uploading to TOP, by fax, and by e-mail. The Tenant’s Representative e-mailed a request to re-schedule the hearing on January 8, 2024 to the Board, so she was clearly able to submit documents by e-mail. Therefore, I find that the Tenant’s Representative did not have issues submitting evidence.

The third reason was that the Tenant had a full-day medical appointment in the U.S. on the day of the hearing and was unable to give testimony. The Tenant’s Representative submitted a screenshot of a website showing an appointment confirmation for 7:30 AM on the date of the hearing. The screenshot lacks detail, such as the Tenant’s full name, the name of the clinic, the reason for the appointment, the date the appointment was scheduled, or the duration of the appointment. The only information apart from the date and start time was the address. Therefore, I was not satisfied that the Tenant had a mandatory medical appointment on the hearing date and was unable to participate as a result.

The fourth reason was that the Tenant had filed a separate T2 application against the Landlords. The Tenant’s Representative submitted that the matters must be heard together, therefore the L2 application must be adjourned. The request to combine the applications was denied by Vice-Chair Robert Patchett on the request to re-schedule because the applications did not have overlapping issues which could lead to inconsistent findings. I saw no reason to make a finding to the contrary at the hearing.

The L2 application was heard at the February 15, 2024, hearing as originally scheduled. To alleviate any prejudice to the Tenant as a result of the matter proceeding in their absence, I allowed the Tenant’s Representative to provide information on her client’s behalf regarding section 83 issues to the best of her knowledge.

[7] The Board found that the respondent Ms. Trevisan, in good faith, requires the rental unit for her own residential occupation for at least one year for the following reasons:

(a) The Landlord testified that she had a child in November 2023, and served the N12 Notice to the Tenant in advance of the birth so that she and her family could move into the rental unit after the birth.

(b) According to the Landlord, she used to work two jobs but is now on maternity leave. Due to the reduced income in the household, she and her family cannot afford to keep living in their current home.

(c) The Landlord intends to move into the rental unit for at least the duration of her maternity leave of 18 months.

(d) The Landlord plans to sell her current home in order to reduce expenses and save up money to purchase a more affordable house in the future.

(e) The Landlord first initiated informal communications regarding the termination of the tenancy in February 2023, but when the Tenant did not move out in the spring of 2023, the Landlord obtained legal advice and issued the formal N12 Notice on July 12, 2023.

(f) I find the Landlord’s testimony to be credible. The Landlord’s testimony was consistent and withstood rigorous cross-examination. I am satisfied, on a balance of probabilities, that the Landlord has the genuine intent to move into the rental unit.

[8] Mr. Hunt submitted that this application was retaliation against Ms. Allen for sending a cease-and-desist letter to the respondent after the respondent allegedly entered the rental unit without proper notice. As such, he argued that the application must be dismissed pursuant to s. 83(3)(c) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, (“RTA”) as it was brought in response to Ms. Allen, who he characterizes as a tenant, simply attempting to enforce her legal rights.

[9] This submission necessitated the Board to consider whether Ms. Allen is in fact a tenant of the rental unit. The Board found that Ms. Allen was not a tenant for the following reasons:

(a) The Tenant’s Representative submitted that Ms. Allen is the Tenant’s girlfriend and was friends with the Landlord for many years.

(b) According to the Tenant’s Representative, Ms. Allen always paid the rent in the tenancy, and was responsible for communicating with the Landlord on behalf of the Tenant.

(c) The reason that the Tenant entered into the tenancy agreement with the Landlord was that Ms. Allen had a good relationship with the Landlord.

(d) The Landlord testified that she rented the unit to the Tenant, Jabari Hunt, and was not aware that Ms. Allen was living with him until March 2023, when the Landlord started to communicate with Ms. Allen regarding the termination of the Tenant’s tenancy.

(e) The onus is on the Tenant’s Representative to show that Ms. Allen is a tenant. The Tenant’s Representative did not present any evidence of rent payments made by Ms. Allen or of the Landlord agreeing to rent the unit to Ms. Allen. Ms. Allen was not present at the hearing to provide her testimony on the matter and no reason was provided as to her absence.

(f) On a balance of probabilities, I find that the Landlord entered into a tenancy agreement only with the named Tenant, Jabari Hunt. Although the Landlord may have had communications with Ms. Allen regarding the tenancy, I find this does not create a tenancy agreement between them. Rent can be paid on behalf of a tenant. Furthermore, I find the communications between the Landlord and Ms. Allen regarding the tenancy not to be unusual given the relationships between the parties.

(g) No evidence was presented of the Tenant attempting to enforce his legal rights. Furthermore, the Landlord’s illegal entry into the rental unit allegedly occurred in July 2023, but the Landlord first initiated informal communications regarding termination of the tenancy in February 2023. Therefore, I find that the Landlord’s application is not retaliatory, and the application will not be dismissed under section 83(3)(c) of the Act.

[10] In the Request to Review Order, the Board found that Mr. Hunt failed to establish that he was not reasonably able to participate in the proceeding or that a serious error was made in the Order.

Notice of Appeal

[11] Mr. Hunt’s Notice of Appeal dated May 21, 2024 describes the following alleged errors of law:

(5) Member Sinipostolova misapplied the rules of procedure of the Landlord and Tenant Board, and the law of human rights accommodation in housing pursuant to the Ontario Human Rights Code, resulting in an error of law. This error of law was fundamental in the decision LTB-L-060634-23-RV being appealed from;

(6) Member Sinipostolova erred in law by finding that the Appellant’s medical appointment and proof thereof was insufficient to allow for an adjournment of the hearing because the Respondent’s counsel claimed to have contacted the Appellant’s medical provider before the hearing; given the fact that the Appellant did not give consent for the disclosure of his medical information, Member Sinipostolova relied on the Respondent counsel’s misrepresentations of the Appellant’s disability related reasons for being unable to attend the hearing to give testimony as findings of fact; these errors are fundamental and are beyond the jurisdiction of the Board to determine;

(7) Member Sinipostolova erred in law by proceeding without the Tenant’s presence, and making findings of facts without the Tenant present to affirm his testimony on oath, and in the hearing;

(8) Member Sinipostolova erred in law by placing undue emphasis on hearsay evidence in determining the disability related reasons affecting the Tenant’s need for an accommodation inclusive of a hearing date where he could appear and give testimony; and the financial profile of the Respondent who is on maternity leave, receiving income, and sharing income with her spouse, but who misrepresented the truth on oath during the hearing by indicating that she needed to move into the property because she was experiencing financial duress;

(9) Member Sinipostolova erred in law by finding that the common law partnership between Jabari Hunt and Lydia Allen do not address the questions of shared tenancy on the Landlord’s Property;

(10) The Member also made other errors resulting in a denial of natural justice and procedural fairness, which individually and collectively amount to error(s) of law;

(a) The Tenant/Appellant’s counsel was ordered to make submissions and submit evidence after requesting an adjournment of the hearing due to the tenant’s disability related needs, and without reconvening;

(b) Member Sinipostolova erred in law by accepting into evidence and placing undue emphasis on the unsworn testimony of Jessica Travers, a paralegal who claimed to call the medical office of which Mr. Hunt had a scheduled medical appointment on the day of the hearing to deal with his post-surgery care; (which was submitted without reconvening), and Member Sinipostolova erred in law by accepting into evidence and placing undue emphasis on the unsworn testimony of the Landlord Meaghan Trevisan, who misrepresented her income and the financial basis for which she needed to move into the Unit despite the Appellant’s provision of evidence indicating the Landlord was engaged in a campaign of bullying against her; and

(c) The Parties were denied the opportunity to cross-examine Jabari Hunt and Lydia Allen, on text communications with the Landlord which featured prominently in the decision made by the Member.

(11) Individually, and collectively, all of the foregoing constitutes unreasonable and incorrect errors of law requiring this Court’s intervention.

[12] In his Factum, Mr. Hunt distills the above grounds for appeal to the following issues:

Did the Board err in failing to grant an adjournment?
Did the Board breach the Tenant’s right to procedural fairness by relying on the evidence of which the Tenant was unable to corroborate?
Did the Board breach the Tenant’s right to procedural fairness by relying on hearsay evidence and the Landlord’s false and unsworn statements?
Should fresh evidence be admitted?

Statutory Framework

[13] The purpose of the RTA is “to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes”: RTA, s. 1

[14] The RTA is remedial legislation with a "tenant protection focus" and, as such, it must receive "such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”: Honsberger v. Grant Lake Forest Resources Ltd., 2019 ONCA 44, at para. 19.

[15] The Board has exclusive jurisdiction to determine all applications made under the RTA: see RTA, s. 168(2).

[16] The Board has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction.: see RTA, s. 174.

[17] Under s. 183 of the RTA, the Board is to “adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter”.

Standard of Review

[18] An appeal from a decision of the Board is limited to a question of law: RTA, s. 210(1). The standard of review is correctness. Procedural fairness questions are questions of law that are subject to appeal.

[19] In Sterling v. Guillame, 2021 ONSC 1160, Penny J. stated:

25 Under s. 210 of the Residential Tenancies Act, an appeal lies to the Divisional Court from an order of the LTB "only on a question of law." The distinction between questions of law, fact, and mixed fact and law was stated by Iacobucci J. in Canada (Director of Investigation & Research) v. Southam Inc.:

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.

26 Where a tenant appeals an order of the LTB on a question of fact or of mixed fact and law, the Divisional Court does not have the jurisdiction to hear the appeal.

[20] However, an appeal under the RTA in respect of a question of law does not preclude an application for judicial review in respect of a question of fact and a question of mixed fact and law: Equity Builders Ltd. et al. v. Landlord and Tenant Board et al., 2025 ONSC 759, at para. 53.

[21] The appellants have brought this appeal, but they have not brought an application for judicial review.

Issue #1: Did the Board err in failing to grant an adjournment?

[22] Section 21 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, states:

A hearing may be adjourned from time to time by a tribunal of its own motion or where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held.

[23] As stated above, under s. 183 of the RTA, the Board is to “adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter”.

[24] The Board’s Interpretation Guideline 1, Adjourning and Rescheduling Hearings, dated December 1, 2020, states:

Parties should assume that the hearing will proceed on the date stated in the Notice of Hearing. This means that the parties should be prepared to present their evidence, call and question witnesses and make their submissions. …

Not preparing for a hearing based on the expectation that it will be rescheduled or adjourned has substantial risk. If the Member decides to proceed with the hearing on the date set, only the evidence presented at the hearing will be considered.

[25] In Sterling, Penny J. stated:

29 An administrative tribunal such as the LTB enjoys a wide latitude in deciding whether to grant or refuse an adjournment of a scheduled hearing. The decision is discretionary and the scope for judicial intervention is correspondingly limited: Flamboro Downs Holdings Ltd. v. I.B. of T.C.W. & H. of A., Local 879, 1979 1669 Div. Ct.

30 When considering a request for an adjournment, an LTB member must take into account the public interest in resolving a case as expeditiously as possible while balancing the rights of the parties to ensure that matters are resolved quickly while not adversely affecting their respective rights to a fair hearing.

[26] In his Factum, the Appellant states:

The Appellant submits that the Board incorrectly denied the adjournment, despite Jabari Hunt’s provision of evidence indicating that his and his common law spouse’s disability related needs prevented them from attending the hearing, and giving evidence on the record.

[27] Counsel stated that Mr. Hunt’s right arm is permanently disabled and that lifting heavy items would require help. She also states that Ms. Allen has become anxious as a result of this eviction proceeding. No medical evidence was provided to support these assertions.

[28] In reviewing this assertion that the refusal of an adjournment amounted to breach of the duty of procedural fairness, the Review Member stated:

The Tenant did not introduce enough information to determine they were not reasonably able to participate in the February 15, 2024 hearing because of a medical appointment.

At the 1:00PM hearing, the Tenant’s legal representative introduced evidence that the Tenant had an appointment at a medical office in Florida at 7:30AM. The document did not provide details, such as the type of medical office, or the nature and duration of the appointment. The Landlord’s legal representative testified that she had called the telephone number on the document and learned that the office was a dentistry office.

In the circumstances, I find the presiding Member’s decision to proceed with the hearing was reasonable. The Tenant did not introduce sufficient evidence for the Member to find that the Tenant was not reasonably able to participate in the scheduled Board hearing. The Divisional Court’s decision in Wang v. Oloo, 2023 ONSC 1028 (Div. Ct.) gives guidance on the type of information that should be included in a medical note to support a request to adjourn a hearing. At paragraph 10, the Divisional Court affirms:

a doctor’s note must obtain [sic.] sufficient information to enable the court or tribunal to exercise its own judgment as to whether the adjournment should be granted. This should, at a minimum, describe the diagnosis, the effect of the patient’s condition on their ability to attend and participate in the hearing, and a statement as to when, in the doctor’s opinion the patient will be well enough to attend court and participate as required.

In the present case, the Tenant’s appointment confirmation form provided no information for the Member to reasonably conclude that the Tenant could not attend the 1:00PM online hearing because of the 7:30AM appointment. The Tenant therefore did not show that they could not attend the hearing because of a medical appointment.

The Tenant’s legal representative did not dispute the Member’s finding that the Tenant was aware of the scheduled hearing. The Board gave its notice of hearing to the Tenant by email on December 29, 2013. The Tenant’s omission to give their legal representative relevant material and notice of the hearing is not consistent with the duty to exercise reasonable diligence: see, for example, Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541 (Div. Ct.).

[29] I adopt the above reasons. I find that the Board Member’s refusal of the Appellant’s request for an adjournment did not amount to a denial of procedural fairness.

Issue #2 and #3: Did the Board breach the duty of procedural fairness by relying on evidence on which the appellant was unable to corroborate? Did the Board breach the appellant’s right to procedural fairness by relying on hearsay evidence and the respondent’s false and unsworn statements?

[30] These two issues are similar in that they allege that the Board’s findings were based on unreliable and untrue evidence.

[31] In his Factum, Mr. Hunt states:

It was necessary for the Board to require a proper evidentiary basis for the claim that the Landlord's would be occupying the unit, including evidence of the date on which she needed that occupancy. But if sworn evidence had been required, including evidence from the Landlord’s partner, this might have given the Member a fuller evidentiary record. That is one of the reasons for the requirement of sworn evidence: the Landlord made a false statement to the LTB. If she had been required to put that statement under oath, it could be considered as truth.

[32] The hearing proceeded in the absence of Mr. Hunt and Ms. Allen. Ms. Allen’s absence was not explained. Although Mr. Hunt did not disclose evidence to the respondent in accordance with the Board’s Rules, the Board Member permitted the appellant’s counsel to adduce such evidence at the hearing, thereby effectively acting as both legal representative and witness.

[33] Mr. Hunt submits that the respondent Ms. Trevisan gave unsworn evidence at the hearing. This assertion is incorrect as she was affirmed before testifying. There is nothing in the record to support the assertion that Ms. Trevisan’s evidence, in relation to her financial circumstances or otherwise, was untrue.

Issue #4: Should fresh evidence be admitted?

[34] Mr. Hunt submits that he and Ms. Allen should be permitted to adduce fresh evidence on this appeal to address the issue of whether eviction from the rental unit was bona fide as well as to address whether Ms. Allen is a tenant of the rental unit. Fresh evidence should not be admitted on this appeal. Mr. Hunt has failed to show that this evidence could not have been obtained earlier by the exercise of reasonable due diligence or that it is likely to be conclusive of an issue on appeal: See Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759, at p. 13.

Other Grounds

[35] In his Factum, Mr. Hunt raises various grounds not described in his Notice of Appeal.

[36] He submits that the failure to serve the N12 Notice of Termination on both him and the appellant was an error of law. It does not appear that this was an issue placed before the Board nor addressed by the Board. It would have been unnecessary to do so given the Board’s conclusion that Ms. Allen was not a tenant which is not a question of law but rather a question of mixed fact and law.

[37] Further, Mr. Hunt submits that the Board Member’s conduct raised a reasonable apprehension of bias. This ground is also without merit. By failing to ask the Board Member at the earliest opportunity to recuse herself or to even raise this issue with the Review Member, Mr. Hunt has impliedly waived any right to advance a claim of bias: Stetler v. Ontario (Agriculture, Food & Rural Affairs Appeal Tribunal), 2005 24217 (ON CA), [2005] O.J. No. 2817, para. 99.

[38] The appellant also submits that the Board erred in law in finding that Ms. Allen is not a tenant within the meaning of the RTA. This is a question of mixed fact and law and is not appealable under the RTA.

Further Matters

[39] At the outset of her submissions, counsel for Mr. Hunt and Ms. Allen asked that the hearing of this appeal be adjourned on the grounds that the respondents had not hyperlinked the materials in their compendium as required by Rule 61.12(7.1) of the Rules of Civil Procedure. However, these materials were hyperlinked and there is no explanation as to why counsel for the Applicants was not aware of that. Prior to the hearing, counsel contacted counsel for the Board to complain that the Factum was too long and not hyperlinked. Once again, she was wrong on both accounts. Before me, counsel for the appellant asserted the Board was required to deliver a compendium and had failed to do so. There is no obligation on the Board to file a compendium if there is no reason to add to the materials filed by the other parties. Consequently, the motion for adjournment was dismissed. The only breach of the Rules of Civil Procedure established was the appellants’ failure to serve and file a notice of motion and supporting affidavit in respect of their request for an adjournment.

[40] Further, the title of proceeding on the Notice of Appeal filed by Mr. Hunt names both Mr. Hunt and Ms. Allen as the Appellants. However, only Hunt was named in the L2 Application and Allen was not added as a party to that hearing or this appeal hearing. In addition, the respondents submit that Mr. Hunt does not have standing to bring this appeal as he admitted in a Form T5 Application (Landlord Gave a Notice of Termination in Bad Faith), that he moved out of the rental unit on September 19, 2024 which followed the release of the decisions under appeal. Ms. Allen continues to reside in the rental unit. Consequently, Ms. Trevisan has filed a Form A2 Application (Application about a Sublet or an Assignment) for an order that Mr. Hunt illegally sublet the rental unit to Ms. Allen. Ms. Trevisan provided no legal precedent nor any further analysis for her standing argument. Similarly, counsel for Mr. Hunt provided no responding submissions. It is dubious whether Ms. Allen has standing to appeal the Board’s decision when she was not a party to the hearings. In the circumstances, and given the outcome of this appeal, I find that it is unnecessary to address this submission.

Conclusion

[41] The appeal is dismissed. The Board is not seeking its costs. The respondents shall submit their costs submissions, no greater than three pages in length, within one week. Mr. Hunt shall deliver his responding costs submissions within two weeks. The respondents shall deliver their reply costs submission within three weeks. Each costs submission shall be no more than three pages in length, exclusive of a costs outline and any offers to settle that were made in respect of this appeal.

Faieta J.

Released: March 7, 2025

CITATION: Hunt v. Trevisan et al., 2025 ONSC 1505

DIVISIONAL COURT FILE NO.: 309/24

DATE: 20250307

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

JABARI HUNT AND LYDIA ALLEN

Appellants

– and –

MEAGHAN TREVISAN, LORNA MYERS, AND ROBERTO FONTANA

Respondents

REASONS FOR DECISION

FAIETA J.

Released: March 7, 2025

Hunt v. Trevisan et al., 2025 ONSC 1505

Case Summary

REASONS FOR DECISION

Background

Notice of Appeal

Statutory Framework

Standard of Review

Issue #1: Did the Board err in failing to grant an adjournment?

Issue #2 and #3: Did the Board breach the duty of procedural fairness by relying on evidence on which the appellant was unable to corroborate? Did the Board breach the appellant’s right to procedural fairness by relying on hearsay evidence and the respondent’s false and unsworn statements?

Issue #4: Should fresh evidence be admitted?

Other Grounds

Further Matters

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 3