Court File and Parties
CITATION: Reid v. Shewen., 2025 ONSC 4196
COURT FILE NO.: DC-24-00000032-0000
DATE: 2025-07-15
ONTARIO
SUPERIOR COURT OF JUSTICE (DIVISIONAL COURT)
B E T W E E N:
ELEANE REID Appellant/Landlord
D Berstein, for the Appellant
- and -
DARLENE SHEWEN Respondent/Tenant
K. Coombs, for the Respondent L, Naidoo, for the Landlord Tenant Board
HEARD: March 25, 2025
APPEAL FROM LANDLORD AND TENANT BOARD
L. Shaw J.
Overview
[1] This is an appeal by the Appellant/landlord of the Review Decision of the Landlord and Tenant Board (“LTB”), decided by Member Delorenzi dated April 8, 2024, that declined to grant a review of a decision of the LTB by Member Bruno dated February 5, 2024. In Member Bruno’s decision, he found that that Appellant gave the Respondent/tenant a N12 notice, that she required the unit for her own use, in bad faith and ordered the Appellant to pay the Respondent $35,000, which included $24,000 in general compensation.
[2] The Appellant seeks to have both decisions set aside on the basis that there were errors of law. She argues that she was denied procedural fairness, and it was wrongly found that she failed to attend the initial hearing due to her own lack of due diligence.
[3] For the reasons set out below, the appeal is dismissed.
Background
[4] Most of the underlying facts are not in dispute. I will review those facts before addressing the Appellant’s application to file fresh evidence for this hearing. I will then address the merits of the appeal.
[5] The Respondent was a tenant of the Appellant. She entered into a written lease agreement with the Appellant on May 1, 2018, to rent Unit A, 71 Norma Crescent, Guelph, Ontario (the “unit”). On or about November 29, 2021, the Appellant delivered a N12, Notice of Termination, to the Respondent, with an eviction date of January 31, 2022. The N12 stated that the Appellant’s child intended to move into the unit.
[6] The Respondent vacated the unit and rented other premises on February 1, 2022.
[7] In March 2022, the unit was subsequently rented to new tenants and not the Appellant’s daughter.
[8] In June 2022, the Respondent commenced an application before the LTB seeking $35,000 in compensation alleging that the Appellant delivered the N12 in bad faith. Ten months after the application was commenced, in April 2023, the LTD sent to the Appellant a Notice of Hearing via mail at the address listed in the lease and by email using the email also found in the lease. The hearing was conducted on January 18, 2024, by videoconference, 18 months after the application was commenced.
a) The Initial Hearing
[9] The Appellant did not attend the initial virtual hearing and it proceeded on an unopposed basis. In the preamble to the decision, the LTB stated that the appellant was not present although properly served with notice of the hearing by the LTB. It does not state how or when she was served. This was something that was determined from the materials filed for this appeal.
[10] The Respondent’s evidence at the hearing was that on or about March 7, 2022, after vacating the unit, she noticed the unit for rent on Kijiji. She had a witness contact the appellant through Kijiji messenger. The monthly rent listed was $2,900 per month which was $900 more than the $2,000 per month the Respondent paid before she vacated. The witness asked to view the unit but on March 8, 2022, was told that the unit was rented.
[11] Based on this uncontested evidence, the LTB found that that the Appellant breached section 57(1)(a) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”) as the N12 notice stated that the Landlord’s child was going to occupy the unit. The LTB found that this did not happen, and the unit was rented for a higher rent. The LTB found that the Appellant acted in bad faith when she served the N12 notice and then re-rented the unit at a $900 per month increase in rent, with no intention of her child moving into the rental unit.
[12] The Appellant was ordered to pay $35,000 in compensation to the Respondent broken down as follows:
• $5,832.00 for increased rent the Tenant has incurred for the one-year period from April 2022 to April 2023.
• $1,000.00 for the reasonable moving, storage, and other like expenses that the Tenant has incurred as a result of having to move out of the rental unit.
• $24,000.00 in general compensation
• $4,186.00 for cost of additional time and travel to and from work
• $53.00 for the cost of filing the application.
[13] According to the Appellant she was unaware that an application was commenced, or a hearing scheduled. When she became aware of the order, she immediately sought a review of the hearing.
b) The Review Hearing
[14] The review hearing was conducted virtually on April 2, 2024.
[15] According to the review decision, the LTB sent the parties a notice of hearing on August 11, 2023 – fourteen months after the application was commenced. The notice was sent to the Appellant at 2781 Townline Road RR 21, Cambridge, Ontario which was the address listed for the Appellant in the lease agreement. I note that this was the address the tenant used in the application she filed with the LTB. The LTB also emailed the notice to the Landlord at her email listed in the lease agreement.
[16] The Appellant requested that the initial order be reviewed as she was not able to participate in the initial hearing. She argued that she did not receive the application, evidence, or notice of the initial hearing. She explained that she did not prepare the initial lease and the address in that lease was the wrong address. The person who prepared it put the address of the builder of the unit she leased to the Respondent, and not her own personal address. She argued that there was a second lease that both she and the Respondent signed that included her correct address.
[17] The Appellant’s correct email was in both leases. She explained that at some point after the initial hearing, she was going through her spam email and found an email from the LTB enclosing the initial order. She explained that she has a work email and most of her important emails go to that email address, and that she never looked at the spam folder of her personal email that was in the lease.
[18] When she was questioned by the legal representative for the Respondent, she was shown the initial lease and she confirmed that it was her signature on it with her correct email.
[19] The Appellant did not file the second lease as evidence at the Review Hearing. She told the LTB that she did not think the existence of the second lease with her correct mailing address on it was going to be an issue as the second lease was signed by the Respondent and the Respondent knew the Applicant lived at the address in the second lease.
[20] The LTB denied the request for a review. The LTB found that the notice of hearing was sent to the Appellant on August 11, 2023, at the address listed in the lease agreement and a copy emailed to her email address that was also in the lease agreement. Her email was in the section of the lease that said, “Both the landlord and tenant agree to receive notices and documents by email, where allowed by the Landlord and Tenant Board’s Rules of Practice.” The Respondent’s email was not included in the first lease.
[21] The LTB found that by including her email in the lease, the Appellant endorsed service by way of email from the Board. It was therefore incumbent on the Appellant to monitor communications via email diligently. By failing to do so, the LTB found it was the Appellant’s lack of diligence to be the reason why she did not receive the notice of hearing.
[22] The LTB relied on Q Res IV Operating GP Inc. v Berezovs’ka, 2017 ONSC 5541 (Div Ct), where the court found that a party to a board proceeding must exercise appropriate diligence to be aware of and to attend a Board proceeding.
[23] In his decision, Member Delorenize found:
The expectation that parties to a tenancy agreement will exercise due diligence in maintaining open and effective lines of communication is foundational to the proper functioning of tenancy agreements. This includes regularly checking for communications in all agreed-upon forms, including email, which the Landlord admitted to neglecting. The failure to check one's email, including the spam folder, does not constitute an extraordinary circumstance that would warrant a review, especially when the email address was explicitly provided as a means of service.
[24] In addition to finding that the notice of hearing was emailed to the Appellant, the LTB found that the notice of hearing was also sent to the address on the lease. The LTB rejected the Appellant’s argument that her correct address was on a second lease, as if there was a second lease, the Appellant ought to have known that it was her obligation to produce that lease at the Review Hearing. The LTB found that the Respondent should not be punished by the Appellant’s failure to provide the Respondent with an up-to-date address for service of documents.
[25] While the Appellant argued that this was the only rental unit she owned and she was not experienced in dealing with tenants, the LTB found that allowing a review because of such inexperience and the Landlord’s acknowledged oversight would undermine the accountability mechanisms integral to the RTA and the Board’s procedure.
[26] The LTB concluded that the Appellant’s oversight in monitoring her emails and ensuring her contact information was up to date did not meet the requisite level of due diligence. This lack of due diligence contributed to the Appellant’s failure to participate in the initial hearing and, as such, did not justify granting a review and a hearing was therefore not conducted.
Review of the Fresh Evidence and Legal Framework for Admissibility
[27] The Appellant seeks leave to file the following fresh evidence on this appeal:
i) A copy of the second lease;
ii) An Affidavit from her daughter with respect to when and why she moved into the unit on February 1, 2022, and why she left at the end of March 2022, and invoices from movers confirming a move in and out of the unit on those dates;
iii) Evidence from the LTB portal that the first lease was uploaded to the LTB on the day of the Review Hearing.
[28] On appeal, the Court has discretion to admit fresh evidence pursuant to s. 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. There are four requirements to be met for fresh evidence to be introduced: Palmer v The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759, at p 775. Those requirements are:
a. The evidence should not be admitted if, by due diligence, it could have been adduced at first instance;
b. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
c. The evidence must be credible in the sense that it is reasonably capable of belief; and
d. The evidence must be such that, if believed, when taken with the other evidence adduced at trial, it could reasonably be expected to have affected the result.
[29] I will start with the second lease and evidence from the LTB portal regarding evidence filed for the review hearing.
[30] With respect to the evidence from the portal, I am prepared to admit that fresh evidence as it meets all four Palmer criteria.
[31] I will now deal with the admissibility of the second lease. The first lease was signed by the Appellant on May 4, 2019, and by the Respondent on April 29, 2019. The term of the lease was from May 1, 2019, to May 2, 2020. The second lease was signed by the Appellant and the Respondent on May 1, 2020. The term of the lease was May 1, 2020, to May 1, 2021. That was the lease that was governing the tenancy arrangement between the parties at the time the tenancy ended.
[32] The only contested factor regarding whether the second lease ought to be accepted as fresh evidence is whether that evidence, through the exercise of due diligence, could have been adduced at the Review Hearing. The parties concede that the other three Palmer factors are met.
[33] The LTB argues that the appellant knew of the existence of the second lease and the onus was on her to file it as evidence for the Review Hearing and as such, the first Palmer criteria is not met, and the evidence should not be admitted on this appeal.
[34] The Appellant argues that at the Review Hearing, she believed the issue was whether or not she acted in good faith when she served the N12. She did not think there was dispute that the Notice of Hearing was sent to the wrong address as it mailed to her incorrect address; the second lease had her correct mailing address. Furthermore, the Respondent knew of the existence of the second lease as she signed it.
[35] I agree that at the Review Hearing, the Appellant knowing she was seeking a review of the initial order based on lack of notice, ought to have filed the second lease as evidence. The Notice for the Review Hearing clearly informed the parties that they were to give each other a complete copy of all evidence they intended to use during the hearing, seven days prior to the hearing, and that the evidence was to be uploaded to the Tribunal Ontario Portal at least seven days prior to the hearing.
[36] The evidence from the portal is that a copy of the first lease was not filed seven days in advance, as was required, but was only uploaded the morning of the hearing. It was nonetheless admitted as evidence for the hearing when the Appellant was cross-examined by the Respondent’s legal representative about that lease. Based on this evidence the LTB’s finding clearly questioned whether there was in fact a second lease, suggesting that if there was one, the Appellant should have been able to produce it for the hearing.
[37] I am troubled that when the legal representative for the Respondent cross-examined the Appellant, he only asked her about the first lease, when his client would have known of the second lease and that it had a different address for service on it. In my view, it was misleading to leave the impression that the Respondent only signed one lease when she in fact signed two, and there were different addresses on them. The second lease ought to have been the lease the Respondent used for these proceedings as that was the lease governing the tenancy arrangement with the tenancy was terminated.
[38] While arguably the second lease could have been adduced as evidence for the Review Hearing, and therefore does not meet the first Palmer criteria, I am nonetheless prepared to admit it as evidence for this appeal. This is because of what I consider to be the fundamental unfairness with the first lease being the only evidence admitted, when it was not served as evidence seven days in advance as was required. Furthermore, it clearly left the misleading impression with Member Delorenzi, who questioned whether a second lease even existed. In my view the Respondent ought to have been forthright and acknowledged the existence of the second lease. It appears that the Respondent unfairly took advantage of the Appellant for her failure to file the second lease as evidence. By filing only the first lease as evidence, Member Delorenzi was misled and made an erroneous finding that the second lease did not exist.
[39] In my view, that was simply not fair.
[40] With respect to the affidavit evidence from the Appellant’s daughter, that is evidence that goes to the merits of the initial hearing and whether the N12 was issued in good faith. I decline to admit that into evidence as it has no bearing on this appeal. That would be evidence that could be considered if I granted the appeal, and the matter was remitted for a rehearing.
Jurisdiction and Standard of Review
[41] This Court has jurisdiction to hear this appeal pursuant to s. 210 of the RTA. Pursuant to s. 201(1) of the RTA, the appeal is limited to questions of law. Questions of law include whether the correct test was used. Questions relating to procedural fairness are also questions of law: Shapiro v. Swingler, 2021 ONSC 6191, at para. 25.
[42] Questions of fact are about what occurred between the parties. Questions of mixed fact and law are questions about whether the facts satisfy the legal test. This court does not have jurisdiction to hear appeals of mixed fact and law: Devenne v Sedun, 2020 ONSC 6141, at para. 26.
[43] It is not in dispute that the standard of review for questions of law is correctness.
[44] Section 209(2) of the RTA gives the LTB power to review a decision or order if a party to a proceeding was not reasonably able to participate in the proceeding. The term “not reasonably able to participate” should be interpreted broadly to ensure natural justice. Where a party shows that they intended to participate in a hearing but were prevented from doing so, they should be entitled to a hearing through the review process: Abdalla et al v. Koirala, 2023 ONSC 7106, at para 17.
[45] If however, a party’s nonattendance at a hearing was due to a lack of due diligence, that does not mean they were not reasonably able to participate: Abdalla at para. 18.
[46] In Q Res when dealing with the concept of due diligence the court found that “if parties are not diligent in dealing with legal proceedings, then they cannot demand that a Tribunal waste its resources by rehearing matters a second time. To allow this would undermine the ability of the administration of justice to deliver timely cost-effective and final orders.”
Analysis
[47] While the LTB can conduct relatively informal and expeditious hearings, such hearings still require procedural fairness. Parties must be reasonably able to participate in the hearing. The Appellant argues that Member Delorenzi erred when he found that her lack of due diligence was the reason, she was not reasonably able to participate in the original hearing. The Appellant argues that she did not receive notice of the hearing by mail as the Respondent used her wrong address from the first lease in the application, which the LTB then used to serve the Appellant by mail with the notice of hearing. The Appellant argues that had the Respondent used her address from the second lease, which was the governing lease at the time the tenancy was terminated, she would have received notice of the hearing and would have been able to participate in the hearing.
[48] The Appellant also argues that due diligence does not require her to check her spam email when the notice of hearing was served ten months after the application was commenced and fourteen months after the tenancy ended. The Appellant argues that it is not reasonable to expect that she would be checking her spam email for such a lengthy period of time after the tenancy ended.
[49] The LTB’s Interpretation Guidelines, set out examples of when it has been found that a party was not reasonably able to participate in a hearing. One of those examples is when the notice of hearing and other documents were served on the wrong address. In Kewallal v Jackson, 2011 ONSC 1557, the Divisional Court found that the landlord did not receive notice of the original hearing as while served at their last known address, the LTB and Respondent knew that the Appellant lived in Florida for eight months of the year. The court there was a denial of natural justice and remitted the matter back for a rehearing.
[50] I find that the Review Board did not have an evidentiary basis to find that the appellant was properly served by mail and therefore had notice of the proceedings, as it did not have evidence of the second lease before it. Had that lease been in evidence, Member Delorenzi could not have found that the appellant was served properly by mail and therefore had notice of the hearing.
[51] If that was the only mode of service, the appeal would be granted on the basis of an error of law.
[52] The second issue is with respect to service by email. The Appellant argues that while according to the terms of the second lease she and the Respondent agreed that they could each receive notices and documents by email, she never agreed to receive notices from the Board in that manner.
[53] That is not correct. On the second page of the second lease, in the Contact Information Section, where she inserted her email, the Appellant checked the box “yes” where it stated: “Both the landlord and tenant agree to receive notices and documents by email where allowed by the Landlord and Tenant Board’s Rules of Practice.” The Respondent did not include her email on that same line but inserted it on the line below which seemed to respond to the question “The landlord is providing phone and/or email contact information for emergencies or day-to-day communications.”
[54] In my view, it is clear that the landlord was agreeing to receive notices from the LTB by email. Just because the Respondent’s email was included in the line below and not the same line, does not mean there was no consent.
[55] According to Rule 3 of the LTB’s Rules of Procedure, a document may be served on a party by email if the party receiving it has consented in writing to service by email. I am satisfied that through the second lease, the Appellant authorized service by email of notices and documents from the LTB.
[56] Member Delorenzi made a finding that the appellant’s failure to check her spam email was evidence from which he could find that she failed to exercise due diligence. The Appellant urges me to find that expecting a party to check spam email 14 months after an application is commenced, 18 months after a tenancy is terminated, and six months after the one-year time limit for bad faith evictions, does not meet the test of due diligence. The Appellant argues that Member Delorenzi therefore erred in his application of the test.
[57] In Q Res, the Appellant argued that it was not properly served by mail and appealed the Review Board’s finding that it failed to exercise due diligence. The Court agreed that if a Tribunal makes a factual finding without any evidentiary foundation to support that finding it would be an error of law. The court found that there was an evidentiary foundation for the Board to make the finding and that the court had no jurisdiction to reweigh the evidence with a view to substituting its factual findings for those of the Board, and the appeal was dismissed: at para. 11.
[58] Member Delorenzi articulated the proper test. He then made findings of fact and applied those findings to the test. There was an evidentiary foundation for him to make that finding. His application of the facts to the test is a question of mixed fact and law.
[59] The appellant argues that there can be findings of fact that are an error of law: McLeod v Wigwamen Incorporated, 2024 ONSC 859, at para. 12. In McLeod, the court found that the circumstances when a factual finding can be considered an error of law are limited. Those circumstances include when an adjudicator ignored items of evidence, and where the adjudicator committed an error of law or legal principle during a fact-finding exercise. It is also an error of law where the factual finding is based on (a) no evidence, (b) irrelevant evidence, or (c) an irrational inference: Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507; aff’d 2022 ONCA 446, leave to appeal granted 2023 17178 (SCC), at para. 28.
[60] In my view, none of those limited circumstances apply in this case. There was evidence before Member Delorenzi about the Appellant’s email address and that the notice went to her junk mailbox, which she did not regularly check as she normally used her work email. Member Delorenzi properly considered the evidence before him on which to base his finding that the Appellant failed to exercise due diligence by failing to properly monitor the email address that she chose to use in the lease agreement.
[61] As this court does not have jurisdiction to hear appeals of mixed fact and law, the appeal is dismissed as the limited circumstances when the court can consider an error of fact to be error of law does not apply.
[62] I also find that Member Delorenzi provided fulsome reasons for his decision.
[63] The Respondent was successful on this appeal but did not file a bill of costs. I therefore fix costs payable by the Appellant to the Respondent in the sum of $2,500, all inclusive.
L. Shaw J.
Released: July 15, 2025
CITATION: Reid v. Shewen., 2025 ONSC 4196
COURT FILE NO.: DC-24-00000032-0000
DATE: 2025-07-15
ONTARIO
SUPERIOR COURT OF JUSTICE (DIVISIONAL COURT)
B E T W E E N:
ELEANE REID Appellant/Landlord
- and –
DARLENE SHEWEN Respondent/Tenant
LANDLORD TENANT BOARD APPEAL REASONS
L. Shaw J.
Released: July 15, 2025