Rarotonga, 2010

Simon's Megalomaniacal Legal Resources

(Ontario/Canada)

ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)
SMALL CLAIMS / CIVIL LITIGATION / CIVIL APPEALS / JUDICIAL REVIEW / Practice Directives / Civil Portals

Home / About / Democracy, Law and Duty / Testimonials / Conditions of Use

Civil and Administrative
Litigation Opinions
for Self-Reppers

Simon's Favourite Charity -
Little Friends Lefkada (Greece)
Cat and Dog Rescue


TOPICS


RTA - Illegal Acts

. Ali v. Capreit

In Ali v. Capreit (Ont Divisional Ct, 2025) the Divisional Court allowed an RTA appeal, here where an eviction was grounded at the LTB level by "a threat ... allegedly made to one of their staff in the management office" by a single mother of three.

Here the appellant did not attend the main LTB hearing on the argument that "she was not reasonably able to participate in the hearing":
[2] No complaint was made to the police. But the landlord sought to terminate Ms. Ali’s tenancy under s. 61(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (RTA) on the ground she committed an illegal act in the residential complex.

....

Procedural Fairness

[7] Ms. Ali did not have a chance to challenge a serious allegation that she threatened to shoot someone in the office. A crime that requires proof, even under the civil standard of proof, of not only the actus reus but also the mens rea: R. v. McGraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72. Also, her long tenancy was terminated without any opportunity to present evidence or make submissions: see s. 83(1)(a) of the RTA.

[8] The review hearing that was conducted focused solely on whether Ms. Ali was not reasonably able to participate in the January 9, 2024, hearing. Not on whether Ms. Ali committed a crime. This was due to the fact the interim stay order of April 2, 2024, ordered that the review hearing would only consider this issue.[1]

[9] Section 209(2) of the RTA expressly permits the LTB to review orders on the grounds that a requester was not reasonably able to participate in the proceedings.

[10] The member who conducted the review hearing decided that she was not satisfied that Ms. Ali was not reasonably able to participate in the proceeding. In part, the member found that Ms. Ali had notice of the hearing and chose not to attend. Had this been the sole basis to deny the request for a rehearing, this would have been a factual finding that could not be impeached on appeal.

[11] However, Ms. Ali testified that she believed that paying the landlord the filing fee would resolve the matter without a hearing. The member did not disbelieve Ms. Ali on this and observed Ms. Ali indeed had a discussion prior to the January 9, 2024, hearing about the filing fee with the landlord’s legal representative. The member merely found her belief to be unreasonable and could not anchor a legitimate request to be heard on the merits. On this alternative basis as well, she found that Ms. Ali had not discharged her onus.

[12] I am mindful that the LTB has enacted Interpretation Guideline 8 which directs that the LTB will refuse requests for a review where the requestor’s absence was the result of negligence or it finds no reasonable explanation for the failure to attend: Gusain v. Arnold, 2023 ONSC 3765 (Div. Ct) at para. 48. I further recognize that a lack of diligence can constitute a reason not to grant a rehearing to avoid a waste of resources: Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541 (Div. Ct.) at para. 8.

[13] That acknowledged, on the member’s alternate finding, Ms. Ali did not have an opportunity to be heard though she desired so. This is unlike the case of Gusain v. Arnold relied upon by the respondent where at para. 53 of the decision, the court relied on the finding the member conducting the review made that the requester landlord had an adequate opportunity to participate in the original proceedings.

[14] In King-Winton v. Doverhold Investments Ltd., 2008 CanLII 60708 (ONSC Div. Ct.) though the tenant received proper notice of a hearing, the tenant made a mistake about when the hearing was to be held. A new hearing was ordered. At para. 3, the court said “[b]eing reasonably able to participate in the proceeding must be interpreted broadly, natural justice requires no less.” This holding has been followed in other cases where a tenant is the party adversely affected by an inability to participate in a LTB hearing: Zaltzman v. Kim, 2022 ONSC 1842 (Div. Ct.) at para. 3; Wright v. Lallion, 2024 ONSC 4132 [2] at para. 12. Given the inherent vulnerability of residential tenants and the purpose of the RTA (see s. 1), this generous interpretation makes sense.

[15] In principle, I see little to distinguish a sincere confusion about the resolution of a hearing after speaking with the landlord’s lawyer from a sincere confusion about the date of a hearing. Moreover, Ms. Ali has been diligent in pursuing a rehearing once she was notified of the initial decision: Zaltzman v. Kim, at para. 2.
. McLeod v. Wigwamen Incorporated

In McLeod v. Wigwamen Incorporated (Div Court, 2023) the Divisional Court considered an RTA s.210 appeal of an 'illegal acts' termination, here where a criminal charge had since been dismissed:
[16] Section 75 of the Act expressly states that the Board may make an order terminating a tenancy for committing an illegal act “whether or not the tenant…has been convicted of an offence.” The absence of a conviction therefore does not demonstrate an error of law on the part of the Board.

[17] Further, in this case, the evidence before the Ontario Court of Justice differed from the evidence before the Board. Nathanson J. was influenced significantly by an event that occurred the day before the alleged offence. The event affected his assessment of the property manager’s credibility. However, this evidence was not before the Board. Also, while Nathanson J. was not persuaded the Crown had established the elements of the offences beyond a reasonable doubt, he also did not find they did not occur. He stated: “To be clear, I am not in a position to make a finding that the thefts or the assault factually did not occur. …I have significant problems with both versions of events.” Overall, Mr. McLeod has not demonstrated the criminal ruling reveals an error of law in the Board’s reasons.

[18] Mr. McLeod’s further submission that the illegal act finding is not supported by the evidence does not raise an error of law. It is not the role of the court to reweigh the evidence or, absent an error of law, determine whether the evidence supports the Board’s conclusion. The property manager testified before the Board about the details of the assault he alleged occurred. Mr. McLeod disagrees with that evidence, but this is not a situation in which there was no evidence that could, if accepted, support the Board’s findings. This ground of appeal is dismissed.



CC0

The author has waived all copyright and related or neighboring rights to this Isthatlegal.ca webpage.




Last modified: 30-01-25
By: admin