COURT FILE NO.: DC-17-79
DATE: 20191031
ONTARIO
SUPERIOR COURT OF JUSTICE
Heeney, Sweeny and Favreau JJ.
B E T W E E N :
BHAVNA BHASIN and SUNNY BHASIN
Appellants
(Tenants)
– and –
KIRANDEEP GILL and PARMJIT GILL
Respondents
(Landlord)
Jora Kuner
for the Appellants
Amandeep Sidhu and Shaun Singh
for the Respondents
Jason Tam
for the Landlord and Tenant Board
HEARD: October 31, 2019, at Brampton
[1] The appellants, Sunny Bhasin and Bhavna Bhasin, appeal from an order of the Landlord and Tenant Board dated September 11, 2017, terminating their tenancy.
[2] At the conclusion of the hearing, we advised the parties that the appeal was allowed with an endorsement to follow. This is the endorsement.
[3] The appellants entered into a lease agreement on September 19, 2014 with the respondents, to rent a house in Mississauga, starting on October 1, 2014. After a year, the lease became a month to month tenancy.
[4] In 2017, the respondents advised the appellants that they intended to sell the house.
[5] In April 2017, the parties signed a N11 agreement that provided that the tenancy was to end on July 31, 2017. The appellants’ position is that the written agreement was subject to a verbal agreement, whereby the appellants could stay in the house until the closing date after the house was sold. If the house was sold later than July 31, 2017, they could stay in the house beyond that date until closing.
[6] Despite this alleged oral agreement, the respondents brought an application to terminate the tenancy to the Landlord and Tenant Board before the house was sold.
[7] At the hearing before the Board, there was conflicting evidence between the parties about whether the N11 agreement was subject to a side deal. The appellants sought to introduce a recorded conversation with a representative of the respondents that they say confirmed the verbal agreement. However, the Member who presided over the hearing did not allow the evidence on the basis that the appellants had not notified the respondents about the recorded telephone conversation in advance of the hearing.
[8] Following the hearing, the Board made an order confirming the appellant’s eviction. The Board found that the N11 was a binding agreement, and that the tenancy was terminated on July 31, 2017. In reaching this conclusion, the Board stated “Despite any side agreement that may have existed, I find the agreement to terminate the tenancy is binding.” The Board reached this conclusion without making any factual findings about whether there was a side agreement, and, if so, what the legal consequences of a side agreement may be. The Board engaged in no legal analysis and gave no reasons for arriving at the conclusion of law that the N11 was binding.
[9] The Board went on to find that the appellants were not coerced into entering into the N11 agreement and that they had received legal advice before signing the agreement. However, the appellants had not alleged in argument before the Board that they had been coerced. Their argument was that they had signed the N11 based upon the promises made in the oral agreement. It was not reduced to writing because they had been told by the Respondent Parmjit Gill that it was not necessary to do so because he was a man of his word.
[10] Pursuant to s. 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17, an appeal to this Court from a decision of the Landlord and Tenant Board can only proceed on a question of law.
[11] As held in First Ontario Realty Corporation v. Deng, 2011 ONCA 54, at paras. 16-22, the standard of review applicable to a Board’s decision interpreting its home statute or exercising discretion is reasonableness.
[12] Pursuant to Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 47, the decision of an administrative decision maker is reasonable if it is justified, transparent and intelligible, and if it "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law".
[13] In the absence of any explanation for the Board’s finding that “despite any side agreement that may have existed, the agreement to terminate the tenancy was binding”, we cannot find that the decision is justified, transparent or intelligible, nor can we assess whether it falls within a range of reasonable outcomes. At the very least, the Board was required to make a factual finding based on the available evidence as to whether there was in fact a side deal, and, if there was a side deal, to address the legal consequences of such a deal. For example, whether the parole evidence rule applied.
[14] In addition, the Board should have considered section 202(1) of the Residential Tenancies Act that requires that in “making findings on an application, the Board shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit…”
[15] The Board’s decision is therefore incapable of meaningful review. This was an error of law.
[16] Accordingly, the appeal is allowed and the application is remitted back to the Board before a different Member of the Board. The new hearing is to be conducted in accordance with these reasons, and it will be up to the Member at the new hearing to determine afresh whether the recorded telephone conversation should be admitted as evidence.
[17] The appellants seek $3,000 in costs, which the respondents agree is reasonable. Accordingly, the appellants are entitled to costs in the amount of $3,000 payable within 30 days.
HEENEY J.
SWEENY J.
FAVREAU J.
RELEASED: October 31, 2019
COURT FILE NO.: DC-17-79
DATE: 20191031
ONTARIO
SUPERIOR COURT OF JUSTICE
Heeney, Sweeny and Favreau JJ.
B E T W E E N :
BHAVNA BHASIN and SUNNY BHASIN
Appellants
– and –
KIRANDEEP GILL and PARMJIT GILL
Respondents
ENDORSEMENT
RELEASED: October 31, 2019