Court File and Parties

CITATION: Gopalan v. Joseph, 2025 ONSC 4347

DIVISIONAL COURT FILE NO.: 339/24

DATE: 20250724

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: SMITHA GOPALAN AND JAYADAS DHARMAJAN, Appellants

-and-

ASHIN JOSEPH AND ALTHIRA JOSEPH, Respondents

BEFORE: FL Myers J.

COUNSEL: Smitha Gopalan and Jayadas Dharmajan, Appellant Landlords in person Ashin Joseph and Althira Joseph, Respondent Tenants in person

HEARD at Toronto: September 18, 2024

Endorsement

(Delivered orally in open court on September 18, 2024.)

[1] The Landlord appeals the decision of the Landlord and Tenant Board requiring her to pay $986.68 to her former Tenants.

[2] The Landlord failed to attend the hearing before the Board. On reconsideration, the Board found that the Landlord received notice of the hearing and did not look at her emails for a long time. The Landlord said she was disabled but gave no indication of any disability affecting her ability to look at emails or to follow up with the Board about future hearings.

[3] The Board found that the Landlord had not adequately explained her failure to attend and upheld the initial decision.

[4] Under s. 210 of the Residential Tenancies Act, 2006, appeals are limited to questions of law.

[5] The Landlord submits that the Board proceeded without jurisdiction and that this is an error of law. The Landlord says that the rental unit or the premises that she rented to the Respondent was a temporary lodging akin to an Air BNB. It was not a more permanent exclusive rental.

[6] The Tenant gave evidence before the Board that the rented premises was a rental unit and her counsel gave the Board some assurances as well. The Board made its finding on the only evidence before it. The Appellant now says that she has letters from her son and others that show that the unit was shared. The Tenant has her own letters to the contrary.

[7] I cannot deal with the competing facts by letters and other statements being put in front of the court now. I cannot deal with whether there were shared facilities or if it was only a temporary unit like an Air BNB. Those are facts for the adjudicator to find and she found on the only evidence that was before her. So on that basis, she made no error of law.

[8] The Appellant says that the adjudicator displayed bias. But it is not bias to accept uncontested evidence. Bias is a predetermination or making a decision on factors that are not related to the evidence and the case before the court or the Board. There is a strong presumption of integrity of Board members and the Appellant put forward no evidence and no basis to say that the Board was biased against her.

[9] The Appellant says that she rents space to new arrivals to Canada and that she performs other charitable and community works. She asks that the court not show her children that good works can be abused by unlawful conduct.

[10] There is no reason for the Appellant, her children, or her community to be concerned about the integrity of the justice system or the rule of law as it applies in this case. A neutral adjudicator came to a duly called hearing and heard evidence appropriately adduced before her. She made findings of fact based on the evidence. She then applied the law to the facts to make a decision in a public process. That is the rule of law working just as it should.

[11] The Appellant’s problem is that her evidence was not before the Board because she did not attend despite receiving notice of the hearing. On a review, there was no particularization of any cognizable reason for the Landlord’s failure to attend. There was no proof she was in the hospital that day. There was no doctor’s note saying that she was incapacitated that day. She did not send a paralegal to ask for an adjournment in advance in accordance with the Board’s processes.

[12] The existence of total disability for the purposes of employment insurance and public income support is not in itself a basis to prove a lack of ability to attend a hearing as found by the Board.

[13] The findings to which the Appellant objects are due to her own lack of evidence being before the Board. I agree with her that it can be an error of law for an adjudicator to apply irrelevant evidence or to ignore relevant evidence. That was not done here. The adjudicator dealt with the evidence that was properly put before her.

[14] There is an issue raised by the Appellant about whether the first month’s rent was dated November 24 or December 31 as the tenant may have said in another proceeding. Once again, that is a factual matter that is not before the court. But more important, there was no evidence to the contrary before the adjudicator.

[15] The same goes for the $200 disputed security deposit. It is true, as the Appellant says, there is little to no documentary proof of the payment or its purpose. But without the Landlord there giving oral evidence to show that the Tenant’s oral evidence was untrue, there was no reason for the adjudicator not to accept the evidence given before her.

[16] The Appellant argues that the adjudicator failed by applying safeguards to the Tenant’s evidence. She did not identify any particular safeguard. In fact, in our system of adversarial litigation, the adjudicator’s job is to hear the parties’ evidence and the parties’ submissions. The safeguard in the system is giving notice to all parties and giving all the opportunity to participate so that they can point out any discrepancies or weaknesses in the evidence or facts put forward by the other side. That is not the job of the adjudicator who was to be, and was in this case, neutral, disinterested and dispassionate.

[17] Accordingly, without an error of law being adduced or being submitted by the Appellant that I can accept, there is no basis for the appeal. The appeal is dismissed.

Costs

[18] The Tenants do not seek any costs of the appeal, so there are no costs.

FL Myers J.

Release Date: July 24, 2025