I was reading the Divisional Court decision yesterday and I felt like I was reading it for the first time. I guess my mind was not in a place to absorb it the first time! It is interesting to read. These 3 judges knew what this was about, didn’t they?
Do you know what I got from this?
It didn’t matter what Toxic Adult Bullies were indignant over, they still had no justification to refuse entry when requested by Notice of Entry given.
Toxic Adult Bullies testified that he objected to the landlord entering to examine the bathroom ceiling because the landlord already knew about the ceiling and had made a previous attempt to fix it. The tenant testified that she was of the view that enough people had looked at it, she decided that enough was enough, and that the superintendent should just have brought someone to do the work. Toxic Adult Bullies testified that when the superintendent showed up at the apartment, he asked her where the contractor was. He was annoyed that she wanted him to clean out his bathroom so that she could take pictures, and agreed that he didn’t give the superintendent access and told her to come back with her contractors.
While Toxic Adult Bullies may have been genuinely indignant about apparently racially insensitive comments made by the superintendent in the past, nevertheless his refusal to permit entry was unreasonable.
I could have been the biggest bitch around, but they still had no right to refuse entry. Apartment 303 could have had a revolving door with people and contractors going in and out, all hours between 8:00 am – 8:00 pm for a month and as long as a Notice of Entry is given and it’s legit, there is nothing they can do.
The very act of refusing, which they admit to doing, in the Landlord and Tenant Board and at Divisional Court, is what got them evicted. Such a simple thing… Not the mess they create.
This is the point of the rules. People like Toxic Adult Bullies can’t just decide one day that “enough is enough ” and just choose to not cooperate anymore because it isn’t going as they want it to…That is all this boil down to, doesn’t it?
They decide that enough is enough for them to enter so they decide to come up with some convoluted story of racism, that no judicial system has ever said occurred. While Toxic Adult Bullies might say it does, it is just his imagination! “
There was no direct evidence that the application for eviction was motivated by racism.”
You can’t get any clearer than that!
I made a comment at the hearing held on September 26, 2017, out of intense emotions of hearing lies against me for the first time that I have acknowledged and apologized for, I have no need to go over it and over it all the time. It’s obvious, even in their own content what they are doing with that.
I am just very glad that everyone else saw this for what it was… a reaction. In the end, I could care less anymore what Toxic Adult Bullies think it means.
I will finish this site, I want my side all online for people to find if they search for my name, though there really is no need to do so, I just want it there. Peace of mind for myself!
I am happy and content in where I am these days and have no need to worry anymore. I have been shown the truth of the Smear Campaign against me online by Toxic Adult Bullies and I am happy with that.
CITATION: R v. Alto Properties Inc., 2019 ONSC 1451
DIVISIONAL COURT FILE NO.: DC-17-623-00
DATE: 20190415
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Dambrot, Wilton-Siegel and Emery J.J.
|
BETWEEN: |
) ) | |
| AR
Appellant – and – Alto Properties Inc. Respondent | )
) ) ) ) ) ) ) ) | AR and KR, in person |
| David Strashin, for the Respondent | ||
| ) | ||
| ) | ||
| ) | HEARD: February 19, 2019 |
Dambrot J.:
BACKGROUND vg
[1] AR (the “tenant”) appeals from an order of the Landlord and Tenant Board (the “Board”) dated October 3, 2017, terminating her tenancy in a residential unit that she leased from Alto Properties Inc. (the “landlord”) pursuant to s. 69(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”). The Member of the Board (the “Member”) who made the order found that the tenant had refused to permit the landlord to enter her apartment as required by a lawful Notice of Entry in order to assess the extent of repair work requested by the tenant. The Member concluded that the tenant’s conduct substantially interfered with the landlord’s reasonable enjoyment of the residential complex and ordered the termination of the tenancy and the eviction of the tenant.
[2] The tenant brings this appeal from the order of the Board. While the appellant raises a number of grounds of appeal, her central allegation is that the Member was biased.
THE HEARING
[3] The landlord served the tenant with an L2 – Application to End a Tenancy and Evict a Tenant, which proceeded to a hearing before the Board on September 26, 2017. KR, who is the husband of the tenant, acted as her agent at the hearing. At the outset of the hearing, he advised the Member that he had served a “T2 application” on the landlord that day. The Act provides that a tenant can bring an application in Form T2 – Application about Tenant Rights (a “T2 application”) for an order determining that a landlord has breached an obligation under the Act. Mr. R told the Member that his T2 application related to “basically the same stuff” as the L2 application before him, and was returnable on October 31, 2017. In the end, the Member concluded that, because the T2 application was not before him, he could not hear it that day. He proceeded to hear the L2 application, leaving the T2 application to be heard on a later date. I will have more to say about this exchange in the course of these reasons.
The Relationship between the Landlord and the Tenant
[4] The evidence disclosed that in July 2015, the landlord and the tenant entered into a tenancy arrangement for the lease of a unit at 859 Kennedy Road. The tenant lived in the unit with her husband. Over the course of the tenancy, there had been a great deal of acrimony between the landlord and the tenant and Mr. R. Some of the acrimony related to maintenance requests made by the tenant to the landlord.
[5] The landlord led the evidence of the building superintendent. She testified that, from the beginning of her employment at the end of June 2016, the tenant and her husband behaved aggressively towards her. They had constantly refused entry to the landlord, inspectors, and contractors. The superintendent also testified that they blamed her when contractors were unable to arrive at the time scheduled and accused her of being a racist.
[6] The tenant and her husband testified that the superintendent deliberately inconvenienced and harassed the tenant’s family, gave them inadequate notice of the landlord’s intention to enter their apartment, failed to show up to do work as arranged, doctored documents, treated white tenants better than she treated them, and refused to accept rent money in cash. Mr. R also testified that the superintendent made a racist slur directed at him and the tenant in a restaurant in June 2016. The superintendent denied making the comment, or ever even being in the restaurant in question.
Evidence about the Subject Matter of the L2 Application
[7] Turning to the specific matter under consideration in this case, on August 22, 2017, the tenant submitted a maintenance request form with respect to repairs to the bathroom ceiling in her unit, which was damaged. On the same day, the landlord served the tenant with a Notice of Entry in order to evaluate the damage. The notice specified that entry would take place on August 24, 2017 between 2:00 p.m. and 5:00 p.m. and that the landlord might take photographs of the damage. In a letter provided to the tenant the same day, the landlord explained that the photographs were needed to assess the extent of the required repairs. If the damage was minor, the landlord’s own staff would conduct the repairs; if more serious, a contractor would be hired.
[8] When the superintendent attended at the tenant’s rental unit on August 24, 2017 during the time period specified in the notice, Mr. R refused access to her. The superintendent testified that Mr. R told her that she should have been there at 9:00 a.m., stated that she deliberately made him wait around all day, and asked her where the contractor was. During this interaction, she said that Mr. R was aggressive and confrontational, accused the superintendent of racism, and alleged that she “was scheming to evict all black people from the residential complex”.
[9] With respect to this encounter, Mr. R testified that he objected to the landlord entering to examine the bathroom ceiling because the landlord already knew about the ceiling and had made a previous attempt to fix it. The tenant testified that she was of the view that enough people had looked at it, she decided that enough was enough, and that the superintendent should just have brought someone to do the work. Mr. R testified that when the superintendent showed up at the apartment, he asked her where the contractor was. He was annoyed that she wanted him to clean out his bathroom so that she could take pictures, and agreed that he didn’t give the superintendent access and told her to come back with her contractors.
[10] On August 25, 2017, the landlord served the tenant with a Notice of Termination (an “N5 Notice”) pursuant to s. 64(1) of the Act, on the basis that the tenant’s conduct substantially interfered with the landlord’s reasonable enjoyment of the residential complex. When such a notice is served, it becomes void if, within seven days, the tenant stops the offending conduct. In such circumstances, a tenant is said to have “voided” the N5.
[11] On August 29, 2017, the landlord served the tenant with another Notice of Entry for September 1, 2017 in order to change the lock on the entry door of the rental unit. The tenant, by e-mail, informed the landlord that entry into the unit would be refused, and in fact, on September 1, the landlord was refused entry into the unit. As a consequence, the N5 served on August 25, 2017 was not voided. In addition, the superintendent testified that there had been earlier refusals to permit entry. For example, in October 2016, the tenant refused to permit access to the landlord to replace a window.
[12] On September 5, 2017, the landlord served the tenant with a non-voidable N5 Notice, pursuant to s. 68(1) of the Act. That section provides for the giving of a non-voidable notification of termination where an earlier voidable N5 was given pursuant to s. 62, 64 or 67 of the Act, and further grounds justifying an N5 notice under sections 60, 61, 62, 64, or 67 have arisen more than seven days but less than six months after the first N5 was given to a tenant. While it is not explicit in s. 68(1), it has been held that a non-voidable N5 is only available where the tenant voided the initial N5 within the permitted seven-day period (see Walmer Developments v. Wolch (2003), 2003 CanLII 42163 (ON SCDC), 67 O.R. (3d) 246 (Div. Ct.)). The landlord then brought its L2 application.
THE DECISION
[13] In his decision, the Member granted the landlord’s application and made an order terminating the tenancy as of October 31, 2017. In reaching this decision, he found that the tenant and Mr. R had substantially interfered with the reasonable enjoyment of the residential complex or with another lawful right, privilege, or interest of the landlord by unreasonably refusing access to the rental unit on August 24, 2017.
[14] The Member found that the landlord had properly served the August 22, 2017 Notice of Entry, explaining that an inspection of the bathroom ceiling was required. He found that there was nothing unreasonable in the landlord’s intention to photograph the damage, particularly as it would reduce the need for multiple visits to the rental unit. He noted that the tenant had no authority to dictate when entry should take place. As a result, he concluded that there was no basis for the tenant to refuse entry on August 24, 2017. He further found that the tenant had no authority to refuse entry on September 1, 2017.
[15] With respect to the allegations of racism, the Member did not explicitly accept or reject Mr. R’s evidence about the superintendent making a racist slur in a restaurant in June 2016. He did note, however, that the superintendent testified in reply she does not speak that way, is not a racist, and has very beautiful nephews and nieces who are half black, and that her nephew is “as black as you can get. He’s even darker than” the tenant. The Member expressed the view that the superintendent was apparently oblivious to the offence caused by this comment. In the end, the Member determined that, whatever comment the superintendent made in June 2016, there was no evidence that it dictated her actions as a superintendent and there was no defect in the Notice of Entry. While Mr. R may have been genuinely indignant about apparently racially insensitive comments made by the superintendent in the past, nevertheless his refusal to permit entry was unreasonable.
[16] Finally, the Member found that the second N5 Notice of Termination was invalid because the first N5 notice had not been voided. However, he found that, since the landlord had filed the L2 application for termination and eviction with the Board within 30 days of serving the first N5 Notice, the landlord was permitted to rely on the first N5 Notice in terminating the tenancy arrangement.
[17] In issuing the termination and eviction order, the Member explained that in light of the lengthy history of refused access and the tenant’s pattern of non-cooperation with the landlord’s employees, it was unlikely that the tenant would comply with a conditional order to cooperate with subsequent notices of entry served by the landlord. However, given that the tenant worked long hours and supported a young child, he postponed the eviction for a four-week period to October 31, 2017.
THE GROUNDS OF APPEAL
[18] The grounds of appeal in the tenant’s Notice of Appeal, while less than clear, can be summarized as follows: the reasons of the Member of the Board who made the impugned order are inadequate; the verbal and physical actions of the Member infringed the appellant’s rights (this ground of appeal was developed in the appellant’s factum and oral argument under the heading of bias); and the order of the Board infringed the appellant’s rights under the Act, the Canadian Charter of Rights and Freedoms, the right to natural justice, and the Canadian Bill of Rights. I note that the third ground of appeal was expressed in broad and conclusory terms, and at no time was it developed or argued. As a result, I will not address it.
[19] In her factum, the appellant baldly alleged that the Member erred in law in reaching his decision, and added that the Member denied the appellant her right to a fair hearing and was biased and prejudiced towards the appellant. With respect to bias, she raised the following: the Member denied the tenant the right to present her defence in full; the Member denied the tenant the right to present evidence of past negative conduct of the landlord; the Member failed to adjourn the hearing to be heard with the tenant’s own application; the Member failed to correct the use of racially charged language by the landlord’s superintendent; the Member, on two occasions used hand gestures to lawyers present during the hearing suggesting they “hold on” and wait “one minute” and the Member “halted and disrupted” the hearing on one occasion to allow three lawyers to “play through.” I note that the list of alleged instances of bias in the appellant’s factum was longer, but I have done my best to combine and summarize the points raised.
[20] In oral argument, the appellant’s central submission was that the Member was biased against her and denied her right to a fair and impartial hearing. To demonstrate bias, the appellant focused on the Member’s failure to invite the tenant to seek an adjournment at the outset of the hearing; the Member’s failure to refer to the tenant by her initials in his judgment; the Member’s comment in his reasons that an apparent instance of racial insensitivity on the part of the landlord’s superintendent was unwitting; and the failure of the Member to acknowledge that the superintendent’s actions were motivated by racism. On this basis she asks that the order of the Board be set aside, and that the application to terminate her tenancy be dismissed, or in the alternative, that the matter be remitted back to the Board for a new hearing by a different panel.
[21] In addition, she argued that the reasons of the Member were inadequate and that one of the Member’s findings of fact was unreasonable, and raised several procedural deficiencies in the conduct of the hearing as a result of which her appeal should be allowed. Most particularly, she argued that the Member erred in law in permitting the Landlord to “amend” his L2.
THE COURT’S JURISDICTION AND THE STANDARD OF REVIEW
[22] Section 210(1) of the Residential Tenancies Act provides that any person affected by an order of the Board may appeal to this Court, but only on a question of law. The standard of review on a question of law with respect to the decision-maker’s home statute is reasonableness. With respect to an issue of procedural fairness, however, it is not necessary to engage in a standard of review analysis. Rather it is for the Court to determine whether the requisite level of procedural fairness has been accorded.
PRELIMINARY MOTIONS
[23] At the outset of the appeal, the appellant brought the following three motions: a motion that the landlord’s factum should be struck because it was filed two days late; a motion that the landlord’s factum should be struck because it did not answer all of the issues raised in the tenant’s factum; and a motion seeking leave to adduce new evidence. We dismissed each of these motions, for the following reasons.
The Late filing of the Landlord’s Factum
[24] Rule 61.12(2) of the Rules of Civil Procedure provides that the respondent’s factum and compendium shall be delivered within 60 days after service of the appellant’s factum, appeal book and other required documents. In this case, the landlord’s factum was filed on the 62nd day, some nine months before the argument of the appeal. Rule 3.02 permits a judge of an appellate court to extend the time prescribed by the rules relating to an appeal. When asked how the tenant was prejudiced by the two day late filing, the tenant said that she would have provided a better argument if she had two additional days to prepare. Needless to say, this argument is not persuasive. In the absence of any showing of prejudice, we refused to strike the landlord’s factum on this basis.
The Failure of the Landlord’s Factum to Address All of the Issues Raised in the Appellant’s Factum
[25] We are aware of no precedent for striking a party’s factum on the basis that it inadequately addresses all of the issues. In any event, it was no easy task for the landlord to understand and respond to all of the issues raised in the appellant’s factum. We refused to strike the landlord’s factum on this basis.
The Motion to Adduce Fresh Evidence
[26] In his reasons, the Member found that whatever comments the superintendent had made in June 2016, there was no evidence that these dictated her actions as a superintendent and there was no defect in the Notice of Entry. He went on to observe that, in his view, the superintendent used racially insensitive language in her reply evidence, but said that she was apparently oblivious to the offence it caused.
[27] The appellant sought leave to adduce a series of emails sent to the tenant by the superintendent after the order for possession and eviction was made, for the purpose of supporting the tenant’s position that the superintendent’s actions were motivated by racism. From this, the appellant intended to ask this Court to draw the inference that the Member was biased in concluding that the superintendent was apparently oblivious to the offence her insensitive language caused.
[28] We refused to permit the material to be filed. This material did not meet the test for adducing fresh evidence on appeal. First, the material could not be received since it was not in affidavit form. But, more importantly, it could not conceivably affect the outcome of the appeal. Assuming that the material reveals some subsequent use of racially insensitive language by the superintendent, or even that the superintendent was a racist, that fact would not in any way suggest that the Member exhibited bias when he commented that the superintendent appeared to him to be oblivious to the offence her language caused.
ANALYSIS OF THE GROUNDS OF APPEAL
[29] I will attempt to address all of the grounds of appeal raised by the appellant, but I will re-order them and combine some of them in an effort to provide coherence to my analysis.
- INADEQUATE REASONS
[30] Inadequacy in reasons for judgment does not alone give rise to a free-standing right of appeal or an entitlement to appellate intervention: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 at paras. 14 and 21. Instead, an appellate court must take a functional approach in assessing the adequacy of reasons for judgment. This involves a two-stage analysis. In the first stage the Court determines whether the reasons are inadequate. If they are, the Court proceeds to the second stage and determines whether the reasons cause prejudice to the appellant’s right to meaningful appellate review. In this case, we are of the view that the reasons are adequate. They are sufficiently specific and detailed to permit this court to understand the basis for the decision. We would not give effect to this ground of appeal.
- DENIAL OF THE TENANT’S RIGHT TO A FAIR HEARING
[31] The arguments in the appellant’s factum and in her oral submissions that might fit under this ground of appeal were all presented as matters demonstrating bias on the part of the Member. As a result, I will consider them under that heading. I will simply say now that the tenant had an entirely fair hearing, and at no time did the Member deprive the tenant of any of her rights under the Act, the Canadian Charter of Rights, or the Canadian Bill of Rights, or in any way deny her the right to natural justice.
- BIAS
[32] The appellant submits that the Member’s actions, inactions, and conduct during the hearing created a biased environment that was prejudicial towards the tenant and showed favouritism towards the landlord. As I have indicated, she enumerated several examples of the Member’s conduct that she alleges demonstrate bias. It is always a serious matter to allege bias on the part of an adjudicator. Such a claim amounts to an attack on the integrity of that individual. The appellant’s complaints do not come remotely close to satisfying the very high standard required to displace the strong presumption of impartiality. There is no basis whatsoever to conclude that the Member was biased towards the tenant. As has been said before, baseless allegations of bias do a disservice to the administration of justice. That said, the allegations were made in this case by an unrepresented litigant who, I can only assume, is sincerely reflecting her perception of the proceedings. In that circumstance, I will characterize her argument as an allegation that there existed a reasonable apprehension of bias, and will consider each of her allegations in support of her position either individually, or grouped with related allegations.
[33] The test for a reasonable apprehension of bias is settled. The question that must be answered is: would an informed person, viewing the matter realistically and practically, and having thought the matter through, think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly? (See Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817.) In our view, that test has not been met in this appeal. However, as I indicated, I will discuss briefly the matters that the appellant argued are indicia of bias.
(a) The Member denied the tenant the right to present her defence in full; and
(b) The Member denied the tenant the right to present evidence of past negative conduct of the landlord
[34] Upon a careful review of the transcript of the hearing, I am unable to find any occasion where the Member denied the tenant the right to present her defence in full, and in particular, any occasion where the Member denied the tenant the right to present evidence of past negative conduct of the landlord. In fact, the Member gave each party considerable leeway to present their case, including evidence of the history of the tenancy and the stormy relationship between the landlord and the tenant. There is no evidentiary foundation for either of these allegations of bias, and nothing in them that could raise a reasonable apprehension of bias.
(c) The Member failed to adjourn the hearing to be heard with the tenant’s own application; and
(d) The Member failed to invite the tenant to seek an adjournment at the outset of the hearing
[35] As I have mentioned, at the outset of the hearing, Mr. R advised the Member that he had served a “T2 application” on the landlord that day. He told the Member that the T2 related to “basically the same stuff” as the L2 application before him,[1] and asked the Member, “So, what happens there?” The Member replied, “… unless you’re wanting to adjourn this [the L2] to that date [the date when the T2 would be heard] and hear them both together, I’m suspecting not, I don’t know that you’re ready to go on yours today … I don’t have that in front of me …” Neither party asked the Member to adjourn the L2 to be heard together with the T2, and the Member proceeded to hear the L2 alone.
[36] On this appeal, the appellant argued that, despite how the transcript reads, the Member asked the superintendent if she wanted to adjourn the L2, and demonstrated bias by not asking her as well. In addition, the Member demonstrated his bias by failing to adjourn the L2 on his own motion.
[37] In my view, nothing about this incident remotely suggests that the Member was biased, or creates a reasonable apprehension of bias. First, I am unconvinced that the Member offered the superintendent an opportunity to seek an adjournment. His comment about an adjournment is in the middle of a dialogue with the tenant, and the superintendent made no response to it. But in any event, had Mr. R wanted an adjournment, he would have asked for one. The Member had no obligation to offer, far less to order, an adjournment in these circumstances.
(e) The Member failed to correct the use of racially charged language by the landlord’s superintendent; and
(f) The Member exhibited bias by commenting that the superintendent’s apparent instance of racial insensitivity was unwitting
[38] As I have already mentioned, in his reasons, the Member commented on the fact that, in the course of denying the allegation of racism made against her, the superintendent used racially insensitive language, and noted that she was apparently oblivious to the offence it caused. Contrary to the assertion of the appellant, the finding that it was unwitting was evidence-based and available to him, and did not raise a reasonable apprehension of bias. The appellant’s more fundamental complaint is that the Member did not correct the superintendent’s comment immediately upon it being made.
[39] I reject this complaint. An adjudicator must exercise judgment in determining whether and when to admonish a party or a witness for using inappropriate or offensive language. The nature of the language used, the extent of its use, the apparent intention of the speaker, and the effect that the adjudicator’s comment might have on the proceeding must all be taken into account. It should also be borne in mind that such a decision must be made in an instant. It was open to the Member to refrain from commenting on what he considered to be a racially insensitive comment made by the superintendent, who was oblivious to the offence it gave, in the course of defending against an allegation of racism. The Member’s delay in commenting about the language does not reflect bias on his part, and does not raise a reasonable apprehension of bias.
(g) On two occasions the Member used hand gestures to lawyers present during the hearing suggesting they “hold on” and wait “one minute”
[40] Needless to say, the transcript of the proceedings does not confirm that the Member ever made the hand gestures alleged by the tenant. We have nothing but the tenant’s bald assertion that this took place. In any event, it is impossible to imagine how this conduct, if it took place, could even remotely be indicative of bias, or support a claim that there was a reasonable apprehension of bias on the part of the Member.
(h) The Member “halted and disrupted” the hearing on one occasion to allow three lawyers to “play through”
[41] At one point during the tenant’s presentation of her case, the Member interrupted the proceeding and permitted persons involved in two other quick matters to address him briefly. The appellant argues that this is indicative of bias on the part of the Member. I do not agree.
[42] It is common courtesy for judges and tribunals to briefly interrupt on-going proceedings in order to permit parties involved in matters that will occupy very little hearing time to be heard. Doing so favours neither party in the interrupted proceedings and cannot conceivably raise a reasonable apprehension of bias.
(i) The failure of the Member to acknowledge that the superintendent’s actions were motivated by racism
[43] It was open to the Member to conclude, based on the evidence he heard, that the superintendent’s actions were not motivated by racism. This is a factual determination. As I have noted, a person affected by an order of the Board may only appeal to this Court on a question of law. While the appellant may disagree with the Member’s conclusion, there is no basis to view it as reflecting bias, or as creating a reasonable apprehension of bias on the part of the Member.
(j) The failure of the Member to refer to the tenant by initials
[44] The appellant directed our attention to the fact that the Member, in his reasons, referred to the tenant’s husband and the landlord’s two agents by initials, but referred to the tenant exclusively as the “tenant.” The tenant is a person of colour. The other three individuals are not. The appellant argued that, in singling her out in this way, he revealed his bias. This argument must fail. As is usual in reasons for decision of this tribunal, the Member consistently refers to the landlord, which is a corporate entity, as the “landlord”, and consistently refers to the tenant as the “tenant”. He referred to all other individuals by their initials. This serves the purpose of anonymizing the persons directly involved in a landlord and tenant dispute, while ensuring that the reader knows when either the landlord or the tenant is being referred to. Whatever might be said about this practice, it is not motivated by bias, and raises no reasonable apprehension of bias.
Conclusion about bias
[45] Whether looked at individually or cumulatively, the matters raised by the appellant do not result in a reasonable apprehension of bias.
- UNREASONABLE FINDINGS OF FACT
[46] The only finding of fact that the appellant challenged as being unreasonable was the finding that the landlord’s application for eviction was not motivated by racism. As I have noted, Mr. R alleged that the superintendent had uttered a racial slur in June 2016. The superintendent denied this allegation. As I have already mentioned, the Member determined that, whatever comments the superintendent had made in June 2016, there was no evidence that these dictated her actions as a superintendent and there was no defect in the Notice of Entry. The Member concluded that, while Mr. R may have been genuinely indignant about apparently racially insensitive comments made in the past, it is also the case that his refusal to permit entry was unreasonable.
[47] This ground of appeal is ill-conceived. Because an appeal brought pursuant to s. 210(1) of the Residential Tenancies Act is limited to questions of law, there is no authority for this Court to allow an appeal on the basis that a Member of the Board made an unreasonable finding of fact. But that does not mean that findings of fact are beyond the reach of appellate review. I say this because it is an error of law to make a finding of fact for which there is no evidence, or where the assessment of evidence is based on a wrong legal principle: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197 at paras. 25-30.
[48] However, even when the impugned finding of fact is assessed for an error of law, this ground of appeal cannot succeed. There was no direct evidence that the application for eviction was motivated by racism. The appellant asked the Member to draw such an inference from evidence that was in dispute that the superintendent had uttered a racial slur to the tenant more than one year before the events leading to the eviction application and from her insensitive comment at the hearing. On the other hand, there was direct evidence before the Member that the tenant’s refusal of entry to the superintendent was unreasonable. As a result, there was ample evidence before the Member that supported his findings of fact. He made no error in law in making those findings. This ground of appeal fails.
- PROCEDURAL DEFICIENCIES
[49] In addition to her argument that this proceeding should have been adjourned, which I have addressed as an aspect of her argument about bias, the only other procedural deficiency argument advanced by the appellant was her allegation that the Member erred in law in permitting the landlord to “amend” his L2. It is necessary to examine the background to this argument briefly.
[50] As I have noted, the landlord served the tenant with a voidable N5 on August 25, 2017. The tenant had seven days to “void” the N5, failing which, the landlord was entitled to bring an L2 application. The tenant did not void the N5, but rather than immediately commencing an L2 application after the seven day period, the landlord first served a non-voidable N5. As I have already noted, it has been held that a non-voidable N5 is only available where the tenant voids the initial N5 within the permitted seven-day period, and further grounds arise justifying an N5 notice under ss. 60, 61, 62, 64, or 67 more than seven days, but less than six months after the first N5 was given to a tenant. Apparently, landlords frequently make the error of serving a non-voidable N5 when it is unavailable. However, the L2 in this case was commenced within the 30-day period after the termination date specified in the first N5, and accordingly was validly brought. Permitting a hearing to proceed on the basis of an L2 in such circumstances is consistent with other decisions of the Board (see, for example, File No. TNL-96713-17, 2017 LNONLTB 1626; and File No. TEL-83876-17, 2017 LNONLTB 2028). The appellant argued that the Member improperly permitted the landlord to amend the L2 form, but in fact, no amendment was made or required. There is no merit to this ground of appeal.
DISPOSITION
[51] The appeal is dismissed.
[52] The respondent may serve and file written submissions of no more than two pages plus a costs outline within 15 days of the release of this decision, and the appellant may serve and file responding submissions on the same terms within 15 days thereafter.
_______________________________
- Dambrot J.
I agree _______________________________
Wilton-Siegel J.
I agree _______________________________
- Emery J.
Released: April 15, 2019
CITATION: R v. Alto Properties Inc., 2019 ONSC 1451
DIVISIONAL COURT FILE NO.: DC-17-623-00
DATE: 20190415
| ONTARIO
SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Dambrot, Wilton-Siegel and Emery J.J.
BETWEEN: AlR Appellant – and – Alto Properties Inc. Respondent REASONS FOR JUDGMENT |
|
THEN J. |
