CITATION: Richmond v. Rodriguez, 2025 ONSC 1666
DIVISIONAL COURT FILE NO.: 430/24
DATE: 20250314
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Anya Richmond
Appellant
– and –
Joseph Rodriguez
Respondent
Melissa Rajaram, for the Appellant
Marc Goldgrub, for the Respondent
Olivia Filetti, for the Landlord and Tenant Board
HEARD by videoconference at Toronto: March 11, 2025
O’Brien J.:
REASONS FOR JUDGMENT
Overview
[1] The central question on this appeal is whether the court should quash the decision of the Landlord and Tenant Board and order a new hearing because there was no recording available of the hearing. The appellant tenant alleges the Board member breached procedural fairness by, among other things, curtailing her representative’s ability to cross-examine the landlord. The landlord denies this and submits the Board member gave the tenant’s representative ample opportunity on cross-examination, which devolved into a fishing expedition.
[2] In the absence of a recording and in the face of allegations of procedural unfairness, the tenants seeks for the matter to be remitted to the Board for a new hearing. The tenant also raises arguments about the Board’s treatment of the burden of proof and that the Board member failed to consider all circumstances relevant to ordering an eviction.
[3] The tenant had been living in the basement unit since July 2016. Her tenancy continued when the landlord bought the rental property in 2023.The residential complex contains three units. The landlord lives in the upper unit and his sister and mother live in the middle unit. The landlord sought to terminate the tenancy because he stated he needed it for his mother.
[4] By order dated May 29, 2024, the Board terminated the tenancy. The question before the Board was whether the landlord had established that he in good faith required possession of the rental unit for at least one year for his mother to occupy. The Board was satisfied that the landlord’s mother genuinely intended to live in the rental unit for at least one year.
[5] Following the hearing, the tenant requested a recording of the hearing and was informed the recording device had malfunctioned and no recording was available.
[6] The tenant submits the Board erred by failing to provide a transcript from the hearing, particularly given the allegations of procedural unfairness. She says the breaches of procedural fairness included interrupting and curtailing her representative’s cross-examination and abruptly ending the hearing before she could cross-examine the mother or provide evidence relevant to whether an eviction should be ordered in all the circumstances. She submits the Board in any event erred in failing to comply with its duty to inquire into all circumstances before granting an eviction application, as required by s. 83(2) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (RTA).
[7] Although not pursued in oral argument, in her written submissions, the tenant alleged the Board member demonstrated a reasonable apprehension of bias and that the Board reversed the onus of proof.
[8] Under s. 210(1) of the RTA, an appeal to this court is limited to errors of law, for which the standard of review is correctness. I am not persuaded the Board erred in law. For the following reasons, the appeal is dismissed.
Does procedural fairness require a new hearing because of the absence of a transcript?
[9] There is no statutory or common law requirement for a tribunal to produce a recording of its proceedings capable of generating a full transcript. However, if there is no transcript, and proper appellate review is compromised, this can be the basis for the reviewing court to order a new hearing: Billion v. Vaillancourt, 2016 ONSC 5820 (Div Ct.) at para. 7. It is unfortunate that no recording was available in this case.
[10] That said, I have concluded the ability of the court to review the decision is not undermined. There is an adequate record of what occurred before the Board to permit appellate review. Both parties submitted affidavits sworn by the representatives who attended the hearing detailing how the hearing unfolded. While there are some differences in perspective, the affidavits are largely consistent in setting out what occurred.
[11] For example, with respect to the allegation that the Board member improperly limited questioning, the affiants agree that the Board member interrupted and limited questioning by the tenant’s representative because of concerns about relevance. They also agree the hearing lasted approximately two hours, with most of the time spent on the tenant’s representative’s questioning. In the Board’s order, the Board member stated: “I allowed the Tenant’s Legal Representative a lot of time to present evidence that refuted the Landlord’s…” (emphasis added). It was overall agreed that the Board allowed the tenant extensive time for questioning but also interrupted her representative multiple times because of concerns about relevance.
[12] Similarly, there was no dispute that the Board ended the hearing without expressly asking the tenant’s representative if he intended to cross-examine the landlord’s mother and without specifically seeking to elicit evidence that might be relevant to considerations under s. 83(2) of the RTA, other than to ask how long the tenant would need to find new housing. The tenant characterized the Board as having ended the hearing “abruptly.” The landlord characterized Board as having ended the hearing after giving the tenant’s representative ample time to present his case. In short, there was little dispute about what occurred, although the parties characterized it differently. In these circumstances, the court is in an adequate position to conduct appellate review.
Was there a breach of procedural fairness?
[13] I am not persuaded that the Board breached the tenant’s right to procedural fairness. Applying the factors in Baker v. Canada (Minister of Citizenship and Immigration, 1999 699 (SCC), [1999] 2 SCR 817, at paras. 22-27, I agree the question of whether a tenant should be evicted is a serious matter with a significant impact on the tenant. On the other hand, the Board is a high-volume tribunal that is specifically required to adopt the most expeditious method of determining questions in a proceeding that affords all parties an adequate opportunity to know the issues and be heard: RTA, s. 183. The Board’s rules permit the Board member to define and narrow the issues, question a party or witness, and limit the evidence or submissions on an issue.
[14] In this case, the hearing started at 9:50 a.m. The Board member advised the parties during the hearing that he had another hearing starting at 1 p.m. As set out above, he allowed the parties a hearing of approximately two hours. The landlord’s evidence was submitted by documents, including a declaration from the landlord’s mother. The landlord’s representative directed the Board member to this evidence at the outset, but the bulk of the time was spent on the tenant’s representative’s questioning. The Board member also directly asked the tenant a few questions.
[15] I do not accept there was a breach of procedural fairness in curtailing the tenant’s representative’s questioning. In addition to the amount of time afforded to the representative, the record shows that the cross-examination was meandering and that at least some of the questioning was of limited relevance. For example, the tenant’s representative tried to cross-examine the landlord on an issue regarding the landlord removing the tenant’s hockey sticks from the furnace room and about the tenant inviting neighbours to pick grapes from the backyard. It was open to the Board member to curtail this questioning on the basis that it was not sufficiently probative to the landlord’s good faith.
[16] Similarly, it was open to the tenant’s representative in the time allotted to him to ask to cross-examine the landlord’s mother. Section 72 of the RTA states the landlord is required to provide an affidavit sworn by the person who intends to move into the unit. The landlord in this case therefore provided a declaration by the mother. It was open to the tenant to summons the mother to ensure she attended. In any event, the tenant’s representative did not ask to question the mother.
[17] It was also open to the tenant to present evidence of circumstances that would be relevant to s. 83(2) of the RTA. Section 83(2) states that the Board shall not grant an application for eviction at a hearing “unless it has reviewed the circumstances and considered whether or not it should exercise its powers” to evict or postpone the eviction. At one point in the hearing, the Board member specifically asked the tenant how long she would need to find new housing. This would have been a good opportunity for the tenant’s representative to raise other s. 83(2) considerations. He instead continued his cross-examination of the landlord that the Board member evidently was finding to be unhelpful.
[18] Finally, I reject the tenant’s argument that the Board member demonstrated a reasonable apprehension of bias against the tenant. There is a strong presumption of judicial or quasi-judicial impartiality: Wewaykum Indian Band v. Canada, 2003 SCC 45, at para. 76. The party alleging reasonable apprehension of bias must provide cogent evidence to overcome the presumption: Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793, at para. 64.
[19] Here, as discussed further below, the Board member first considered the landlord’s evidence of good faith and stated that, based on the evidence, he would be inclined to grant the application. However, he then allowed the tenant ample opportunity to demonstrate why she said the landlord was not acting in good faith. This was the bulk of the time at the hearing. He expressly stated that he gave the tenant “a lot of time” to present evidence to refute the evidence of the landlord. This is sufficient to demonstrate he was open to being persuaded, but ultimately concluded the landlord was acting in good faith.
Did the Board err by failing to inquire into all the circumstances, as required by s. 83(2) of the RTA?
[20] The tenant submits the Board had a proactive obligation under s. 83(2) to inquire into the circumstances relevant to whether it should order an eviction or order that enforcement of the eviction be postponed. She emphasizes the wording of s. 83(2), which states that the Board “shall not grant the application unless it has reviewed the circumstances…”.
[21] I disagree that the Board failed in this obligation. As described above, the Board did ask the tenant how long she would need to find new housing. This is one of the considerations relevant to s. 83(2). The Board member otherwise gave the tenant ample opportunity to present her case. Further, in its order, the Board expressly adverted to s. 83(2), stating that it had “considered all of the disclosed circumstances in accordance with subsection 83(2) …”. The Board also delayed the date for eviction until August 31, 2024, almost three months after the date of the order. Postponing the eviction demonstrates the Board member had turned his mind to the tenant’s circumstances. This ground of appeal therefore fails.
Did the Board err by reversing the onus of proof?
[22] I also reject the tenant’s submission that the Board reversed the onus of proof in determining whether the landlord had a good faith intention for his mother to occupy the unit. At the outset of his reasons, the Board member reviewed the landlord’s evidence, stating that the landlord in good faith required possession of the unit “for the purpose of giving his ailing mother a more accessible place to live.” The member noted the mother was 77 years old and was facing upcoming medical procedures. The Board member then started his analysis of good faith by recognizing the landlord’s obligation to show good faith. The member stated that, for the landlord to be successful on the application, “the Landlord must establish that at the time of the service of the N12 [notice to terminate] the landlord’s mother required, in good faith, the unit for residential use.” (emphasis added)
[23] The Board member stated the tenant’s legal representative “could not provide sufficient reasons that the Landlord was acting in bad faith by requiring the rental unit for his mother’s personal use.” However, he went on to conclude that he was satisfied, “based on the Landlord’s evidence” that the landlord’s mother genuinely intended to live in the rental unit. Given the member’s statement at the outset of the analysis that the landlord was required to establish good faith, and his conclusion that he was persuaded of good faith by the landlord’s evidence, he did not reverse the onus of proof. He was satisfied the landlord had shown good faith and the tenant did not displace that conclusion with sufficient evidence of bad faith.
Disposition
[24] The appeal is dismissed. The tenant said she required four to six months to move out of the unit. The landlord submits the delay has already been extensive and seeks that the Board’s order be enforceable immediately. The tenant is a low-income individual who likely will have difficulty finding new affordable accommodation. On the other hand, the landlord needs the unit for his mother’s use. He has already been delayed over six months since the original eviction date ordered by the Board. In these circumstances, I consider a delay until May 31, 2025 to be reasonable and fair. The Board’s order terminating the tenancy therefore may be enforced starting May 31, 2025.
[25] With respect to costs, there is no persuasive justification for the full indemnity costs sought by the landlord. The tenant was entitled to exercise her appeal rights, particularly given the absence of a transcript. Given the landlord’s success, he is entitled to partial indemnity costs of $2,000 all-inclusive.
O’Brien J
Released: March 14, 2025
CITATION: Richmond v. Rodriguez, 2025 ONSC 1666
DIVISIONAL COURT FILE NO.: 430/24
DATE: 20250314
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Anya Richmond
Appellant
– and –
Joseph Rodriguez
Respondent
REASONS FOR JUDGMENT
O’Brien J.
Released: March 14, 2025