|
RTA - LTB - Costs. Sweete v. Moosa
In Sweete v. Moosa (Ont Divisional Ct, 2025) the Divisional Court dismissed an RTA tenant's appeal on fairness grounds, here from an LTB order in favour of the tenant but made "without permitting the tenant to make submissions on costs" - although the court held that procedural fairness was afforded in this respect at the reconsideration (aka 'review') proceeding:Was the tenant denied procedural fairness when he was not permitted to make costs submissions at the February 7, 2024 hearing?
[5] The tenant submits the Board breached procedural fairness by reaching a decision on the landlord’s application without permitting the tenant to make submissions on costs.
[6] I conclude there was no breach of procedural fairness. The Board orders costs in limited situations. Section 204 of the RTA authorizes the Board to order a party to an application to pay the costs of another party. The amount is to be determined in accordance with the Board’s Rules of Procedure. Rule 23.1 provides that where an applicant is successful, the Board may order the respondent to pay the application fee as costs. That does not apply here as the landlord was not successful.
[7] Rule 23.3 states that a “party who engages in unreasonable conduct which causes undue delay or expense may be ordered to pay costs to another party.” According to the Board’s Interpretation Guideline on costs, conduct falling within r. 23.3 could include bringing a frivolous or vexatious application or motion, initiating an application or procedure in bad faith, and taking unnecessary steps in a proceeding.
[8] In the April 4 review order, the Board found that it may have been a breach of procedural fairness not to hear submissions on costs at the February hearing. Even if there was such a breach, there is no breach of procedural fairness before this court because the tenant had the opportunity to make costs submissions before the member hearing the request for review. These submissions were not made orally at a hearing, but given the nature of costs and their limited availability before the Board, this afforded the tenant sufficient procedural fairness on this issue. The tenant’s position on costs was put before a member of the Board, who considered it and determined that costs would not have been awarded in all the circumstances.
....
[13] There was no error in law when the Board declined to order costs after reviewing the submissions on the request for review.
[14] The Board noted that the only basis for a costs award would be unreasonable conduct by a party, such as an application that is frivolous, vexatious, or brought in bad faith. It concluded that, while the landlord’s application was without merit, the landlord was the owner of the corporation, which was closely held. Also, the landlord was self-represented. The errors Mr. Moosa made were not sufficient to demonstrate unreasonable conduct or to justify a costs award.
[15] The Board member specifically considered the landlord’s application leading to the August 2023 order. The Board noted that the landlord had not paid the tenant when he first sought to terminate the tenancy. The member called the landlord’s breach a “technical error” that did not amount to unreasonable conduct “and certainly not unreasonable conduct that would warrant an order for costs.”
[16] The Board did not address the landlord’s 2021 application. Although the tenant viewed the landlord’s applications as falling within the same course of conduct, the 2021 application was less recent and was initiated on a different issue. It did not arise from the landlord seeking the residential unit for his family’s use. In any event, contrary to the tenant’s claim, the Board did not make any finding in the 2022 order that the landlord’s claim was based on fabricated evidence. There was no error in the Board member not addressing this application in its reasons on the review order.
[17] To the extent the tenant made submissions to the Board about the action in the Small Claims Court, it would not have been within the Board’s jurisdiction to award costs related to conduct in pursuing that case. The failure to address this issue also was not an error.
[18] The decision to award costs is an exercise of discretion. The Board considered the relevant circumstances and determined that, keeping in mind the limited situations in which costs are awarded at the Board, costs were not appropriate. As I reiterated to the tenant at the hearing, the court’s jurisdiction is limited to reviewing errors of law. There was no error of law and therefore no basis for this court to intervene in the Board’s exercise of discretion.
|
