Court File and Parties

Court File No.: 598/24
Date: 2025-03-25
Court: Superior Court of Justice – Ontario Divisional Court

Appellant: Serena Wall
Respondent: Trudelle Courts Apartment Limited

Before: Shaun Nakatsuru
Counsel:

• Appellant: Self-Represented
• Respondent: Kristen A. Ley

Heard in Toronto: March 25, 2025, by videoconference

Endorsement

Background

[1] Serena Wall is a tenant of Trudelle Court Apartments Limited (the “Landlord”). At some point prior to November 2023, it appears that Ms. Wall fell into rental arrears and the Landlord initiated eviction proceedings. Ms. Wall raised repair and maintenance issues. On November 23, 2023, the parties reached a consent order before the Landlord and Tenant Board (the “LTB”) dealing with the outstanding issues.

[2] In June 2024, Ms. Wall did not make the rent and the arrears payment that she was required to make under the consent order. In response, the Landlord successfully applied for an ex parte order terminating the tenancy.

[3] After unsuccessfully attempting to change the ex parte termination order within the LTB’s internal review processes, Ms. Wall now appeals to Divisional Court pursuant to s. 210(1) of the Residential Tenancies Act, 2006, SO 2006, c 17 (the “RTA”) which provides for an appeal on questions of law.

The Standard of Review

[4] Appellate standards apply. The standard of review on questions of law is correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. The standard of review on questions of procedural fairness in the context of a statutory appeal is also correctness: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at paras. 27 and 30.

The Proposed Fresh Evidence

[5] Ms. Wall has relied on evidence including photos, documents, and a medical report that was not before the LTB. She has brought a motion to introduce fresh evidence.

[6] Fresh evidence may only be considered on an appeal if it falls within certain limited categories. The test is set out in Palmer v. The Queen, [1980] 1 S.C.R. 759. Ms. Wall must show the following:

(i) that the evidence could not have been adduced at trial by due diligence;
(ii) that the evidence is relevant in that it bears on a decisive or potentially decisive issue;
(iii) that the evidence must be credible in the sense that it is reasonably capable of belief; and
(iv) that the evidence, if believed, taken with other evidence, could be expected to affect the result.

[7] While I am not totally convinced that all of her proposed fresh evidence meets the test for admissibility, I will admit this evidence especially given the Landlord takes no position on admissibility. Specifically, regarding the medical report, while it likely could have been produced at the hearing, Ms. Wall was self-represented, and the report is relevant to the issue of whether she received procedural fairness at the hearing. Therefore, I will consider the fresh evidence though I will not refer to most of it in these reasons as it is not particularly relevant or probative to the issues I must decide.

Analysis

[8] Appeals to this Court in landlord and tenant matters are limited to errors of law. I have no authority or jurisdiction to deal with any alleged mistakes of fact or errors of mixed law and fact. Some errors dealing with the evidence can be so serious as to amount to an error of law: for example, when an adjudicator has made a factual finding when there is no evidence to support it. However, all of the arguments made by Ms. Wall are really arguments that on September 18, 2024, LTB Member Laura Hartslief, who denied Ms. Wall’s motion to set aside the ex parte termination order, made factual mistakes or did not agree with Ms. Wall’s arguments made before her.

[9] On the failure to pay the rent and arrears, the member did not accept Ms. Wall’s testimony that she did pay. The member found her vague in giving details. And the rental receipts did not confirm the relevant portions of her testimony. On the other hand, the member accepted the accuracy of the Landlord’s ledger and preferred it over Ms. Wall’s testimony. This factual finding was reasonable and open to the member to make. Thus, no error of law was committed in the member being satisfied on the balance of probabilities that Ms. Wall breached the consent order by failing to pay June’s rent by June 1, 2024, and by failing to pay $288.00 towards the arrears by June 15, 2024.

[10] In addition, the member found it would be unfair to set aside the eviction order. Again, she made negative credibility findings against Ms. Wall and concluded that Ms. Wall had understated her income and did not have additional employment available to her as she claimed. More importantly to one of her grounds of appeal, the member found unproven on a balance of probabilities that Ms. Wall had medical conditions or head injuries from a fall that prevented her from paying rent or arrears. I appreciate that Ms. Wall’s position is that she failed to pay rent and arrears due to the expense caused by the spoilage of food because her fridge was broken, but Member Hartslief reasonably considered this as a relevant factor she should consider on this issue. She based this credibility finding upon the inconsistencies in Ms. Wall’s testimony and the lack of confirmation. Deference must be paid to this finding of credibility.

[11] Ms. Wall’s arguments about appliance repairs, maintenance, and rent abatements are all matters that were assessed by Member Hartslief who found them not to be a serious breach of the Landlord’s obligations that would justify the denial of eviction. The member’s finding was based upon the evidence of the property manager who testified that the fridge was not broken, and the flooring issues were fixed. Moreover, the member concluded that on this issue Ms. Wall intentionally misled the LTB. No error of law arises from these conclusions. On appeal, Ms. Wall merely makes the same arguments that were rejected below. Her fresh evidence does not turn this factual error into an error of law that can be appealed.

[12] In conclusion, no error of law has been shown by Ms. Wall in the decision of Member Hartslief to deny Ms. Wall’s motion. Before moving on, I will say for Ms. Wall’s benefit that any damages for injuries claimed by Ms. Wall are things that do not fall within my jurisdiction.

[13] The final issue has to do with procedural fairness. Ms. Wall alleges that on July 24, 2024, she tripped and fell because of floor tiling that had been improperly repaired following the consent order. On this appeal, as previously noted, Ms. Wall has submitted medical documentation to demonstrate that she experienced a concussion as a result. Ms. Wall argues that she “misrepresented” herself at the hearing before Member Hartslief due to her concussion and that her “memory was foggy due to the symptoms of the concussion which may have been why [she] sounded vague and confused.”

[14] Ms. Wall also submits that back in November 2023 she “was not feeling well” when she negotiated the consent order with the Landlord’s representative.

[15] I am not satisfied that this ground of appeal should succeed.

[16] With respect to the “not feeling well” during the negotiations, this happened before Ms. Wall’s concussion as evidenced in the medical note. It is a vague and unconfirmed condition. Moreover, this argument was not raised before Member Hartslief. Finally, looking at the totality of the evidence, this argument is uncompelling and is not a reason to grant a rehearing.

[17] Regarding whether Ms. Wall received procedural fairness at the September 5, 2024 hearing before Member Hartslief, I observe that she did refer to her head injury at the hearing and Member Hartslief did not accept that it led to any significant health condition. In addition, Ms. Wall never raised before the member any inability in conducting the hearing due to any lingering effects of a concussion. My review of the “informal” transcript does not suggest any significant difficulties by Ms. Wall in representing herself. Nor does it appear to have been raised during the September 23, 2024, preliminary review of Member Hartslief’s decision. In that review decision, Member Ferris found there was no serious error in the Hartslief proceeding and that Ms. Wall was reasonably able to participate in the hearing. Ms. Wall did not raise the issue of any procedural unfairness before Member Ferris.

[18] Looking at the medical note of Dr. Montoedi as fresh evidence, I find that it is insufficient to establish that Ms. Wall’s ability to represent herself at the hearing was adversely affected. It was a month from her fall to the hearing date. No evidence was produced about her condition that is more current to the hearing date of September 5, 2024. Although on July 26, 2024, the physician assessed it to be a concussion, (I note that the history that she hit the wall as she tried to get out of bed given by Ms. Wall to Dr. Montoedi appears to be inconsistent with what Ms. Wall said at the hearing, which is that it happened due to poor repair of the floor tiles), the CT scan done at that time was unremarkable, Dr. Montoedi noted that Ms. Wall could ambulate without distress, and Ms. Wall was reassured. No medication, treatment, or follow-up was prescribed. I do not find this fresh evidence raises any concern that the September 5, 2024 hearing before Member Hartslief was unfair due to any disability suffered by Ms. Wall. Lastly, Ms. Wall has not provided an affidavit or introduced any other evidence that suggests she was unable to reasonably participate in that hearing.

[19] For these reasons, the appeal is dismissed, and the order of the LTB is affirmed.

[20] This is not a case for costs.

Shaun Nakatsuru
Released: March 26, 2025