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Administrative - Evidence - Multi-Party. O’Shanter Development Company Limited v. Terry Babcooke et. al
In O’Shanter Development Company Limited v. Terry Babcooke et. al (Div Court, 2022) the Divisional Court considered a fairness issue against a landlord in an LTB rent reduction issue where there were multiple tenants but not all testified in person:(d) The Member did not err in law by making findings and awarding remedies to Tenants who did not testify at the hearing about the "effect" upon them of the reduction of the facility. She did not deny the Landlord procedural fairness and natural justice.
[34] The Landlord argues that it is procedurally unfair to provide a remedy to Tenants who did not give oral testimony. The Landlord did not raise this issue with the adjudicator but raises it for the first time on this appeal.
[35] First, all the Tenants who were parties participated in the hearing, either through their lawyer or by attending in person. A party is not required to testify. The court can draw an adverse factual inference from the failure of a witness to testify in certain circumstances, but this is a matter of discretion in interpretation of the facts before the court rather than a requirement of law (Mudrazia v. Holjevac et al., 1969 CanLII 345 (ON SC), [1970] 1 O.R. 275, 8 D.L.R. (3d) 221; Godwin, paras 37-38).
[36] Second, the identities of the tenants were known to the Landlord and it could have called a tenant as its witness.
[37] Finally, the Board was permitted to use the testimony of individual Tenants about harm done to them to draw general conclusions about the effect of the Landlord’s actions on Tenants.
[38] The Landlord argues that this could only be done if a formal proposal to this effect had been made at the start of the hearing. I disagree.
[39] The adjudicator chose to base the quantum of compensation on deprivations and inconvenience that, according to her determinations of fact, were common to all Tenants. She explicitly rejected the alternative that some Tenants who testified should receive more compensation than others. Under such circumstances, it is not necessary for the Board to hear from every tenant.
[40] The appellate courts have directed that in circumstances such as this one, the Board should look to the interests of the tenants as a whole, rather than look to the evidence of impact upon individual use by the tenants of one unit (First Ontario Realty v Deng, 2011 ONCA at para 57).
[41] The Board is entitled to order an abatement for all tenants reflecting the average experience without requiring that each individual tenant be called to the stand (Godwin, supra at para 30).
[42] The tribunal had the power to determine its own procedures and to exclude any evidence that is unduly repetitious without the consent of the parties. The Board did not need to hear 23 witnesses about the loss of a locker. . Ontario (Rental Housing Tribunal) v. Metropolitan Toronto Housing Authority [aka Godwin]
In Ontario (Rental Housing Tribunal) v. Metropolitan Toronto Housing Authority (Ont CA, 2002) the Court of Appeal, in a leading SPPA s.25.1 ['tribunal-made rules'] case (which holds that SPPA s.25.1 powers are to be broadly construded), held that - in an administrative context involving multiple parties - the evidence of some of them only may be adequate, and the evidence of each of them was not necessarily required (here it was multiple tenants making tenant-rights applications before a predecessor of the current (2023) LTB):[1] The issue in this case concerns the jurisdiction of the Ontario Rental Housing Tribunal (the “Tribunal”) to permit the applicants in a multi-party residential tenancy hearing under s. 32(1) cl. (6) of the Tenant Protection Act, 1997, S.O. 1997, c. 24 (the “Act”) to lead oral evidence from a group of tenants who formed a subset of a larger number of tenants claiming rent abatements from their landlord, in lieu of calling each individual tenant to testify.
I. THE FACTS
[2] In the summer of 1999, the Metropolitan Toronto Housing Authority (now known as the Toronto Community Housing Corporation) (the “Authority”) undertook repairs to the balconies and exteriors of apartments in a building in Toronto reserved as student family housing for the University of Toronto. Numerous tenants of the building alleged that the repairs resulted in disruption and inconvenience to them and interfered with the enjoyment of their rental premises. As a result, on July 20, 1999, the respondent Sarah Godwin and more than 300 other tenants (the “Tenants”) applied under the Act for a determination that the Authority, as landlord, had substantially interfered with the reasonable enjoyment of their rental units and for a consequential rent abatement. Initially, the application was signed by Ms. Godwin, through her agent, with an attached list of names and telephone and apartment numbers of the other applicants.
[3] On September 16, 1999, counsel for the Tenants informed the Tribunal that the Tenants wished to present oral evidence in support of their claims against the Authority by calling eleven tenants to testify on behalf of all of the Tenants, instead of calling each involved tenant as a witness (the “Tenants’ Proposal”). The Tenants also intended to rely upon documentary evidence, including surveys completed by approximately 160 of the Tenants. The Authority objected to the Tenants’ Proposal, alleging that the Authority would be prejudiced by it. The Authority also sought an order from the Tribunal severing the applications to require a separate hearing concerning each application and asserted that the Tribunal lacked jurisdiction to combine the applications.
[4] By interim order dated September 24, 1999, a member of the Tribunal directed that the Tenants’ applications be combined under s. 173 of the Act and that the Tenants’ Proposal could proceed. That interim order also required the Tenants to provide the Authority and the Tribunal, prior to the hearing, with written notice of: a) the names of the eleven witnesses who would be testifying at the hearing, b) a description of the facts and evidence to which the witnesses would testify, and c) a list of signatures of those tenants who wished to be parties to the application. The Authority did not seek a stay or judicial review of that interim order.
[5] Thereafter, disclosure was made by the Tenants and the Authority of their respective anticipated evidence. By letter to the Tribunal dated November 16, 1999, the Authority asserted that the eleven tenants proposed to be called as witnesses by the Tenants were not representative of all of the Tenants and argued, accordingly, that viva voce evidence would be required at the hearing from all of the Tenants.
[6] When the hearing commenced on November 19, 1999, the Authority renewed its objection to the Tenants’ Proposal on the basis that it, in effect, contemplated a representative application before the Tribunal and that the Tribunal lacked jurisdiction to permit such an application. That objection led to a further interim order by a member of the Tribunal, dated December 31, 1999 (the “Challenged Order”), by which the Tribunal ruled that it would not disallow the Tenants’ Proposal.
[7] The Authority applied for leave under s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 to seek judicial review of the Challenged Order before a single judge of the Superior Court of Justice on an urgent basis. By order dated March 24, 2000, Justice O’Driscoll granted leave, quashed the Challenged Order on jurisdictional grounds and prohibited the Tribunal from continuing the rent abatement hearing as a “representative proceeding”. The Tribunal, with leave of this court, appeals that decision. On October 12, 2000, the Tenants settled their claims against the Authority through mediation. As a result, the hearing did not proceed. Nevertheless, they support the Tribunal on this appeal. For the reasons that follow, I would allow the appeal.
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(b) The Tribunal’s Authority Under the Statutory Powers Procedure Act
[11] By operation of s. 184(1) of the Act, the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (the “SPPA”) applies to tenant applications under s. 32(1) cl. (6).
[12] The Tribunal derives authority under the SPPA in diverse ways to determine its own procedures and to govern its own processes. Under the SPPA, in its discretion, the Tribunal may:(1) make rules of general or particular application governing the practice and procedure before it (s. 25.1);
(2) determine its own procedures and practices and, for that purpose, may “make orders with respect to the procedures and practices that apply in any particular proceeding” (s. 25.0.1(a)) and “establish rules under s. 25.1” (s. 25.0.1(b));
(3) make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes (s. 23(1));
(4) admit as evidence at a hearing any oral testimony and any document or other thing relevant to the subject-matter of the proceeding, unless such evidence is inadmissible by reason of any privilege, the Act or any other statute, and may act on such evidence and exclude anything unduly repetitious (ss. 15(1) and (2)); and
(5) make interim decisions and orders and impose conditions on such decisions or orders (ss. 16.1(1) and (2)). (c) The Tribunal’s Rules of Practice
[13] In accordance with its powers under s. 164 of the Act and s. 25.1 of the SPPA, the Tribunal has developed Rules of Practice. Rule 2.2 provides that a member of the Tribunal “may decide the procedure to be followed for an application and may make specific procedural directions or orders at any time and may impose such conditions as are appropriate and fair”. Section 2 of the SPPA requires that rules made under s. 25.1 receive a liberal interpretation to “secure the just, most expeditious and cost-effective determination of every proceeding on its merits”. (See, to similar effect, Rule 1.1 of the Tribunal’s Rules of Practice).
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[18] In addition, because the SPPA applies to certain types of hearings held by the Tribunal, including a hearing of the type initiated here, the Tribunal’s power over its own procedures and processes is confirmed by s. 25.0.1 of the SPPA and the rule-making authority conferred on the Tribunal under s. 164 of the Act and s. 25.1 of the SPPA. The Tribunal’s discretion to formulate suitable procedures and directions for the hearing of applications, including tenant applications, is also enunciated in Rule 2.2 of the Tribunal’s own Rules of Practice.
[19] The statutory framework that governs the Tribunal’s jurisdiction in connection with applications, including applications for rent abatements, argues for an expansive view of the Tribunal’s jurisdiction over the presentation of evidence before the Tribunal. In my view, a liberal interpretive approach should govern interpretation of a remedial statute such as the Act, in a manner consistent with its tenant protection focus. In addition, both s. 2 of the SPPA and Rule 1.1 of the Tribunal’s Rules of Practice contemplate that the rules of the Tribunal, including Rule 2.2, are to receive a liberal construction.
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[31] Without approval by the Tribunal of the Tenants’ Proposal, the Tenants would have been obliged to lead viva voce evidence at the hearing from numerous, perhaps hundreds, of the Tenants. Alternatively, multiple hearings to adjudicate each tenant’s claim would have been necessary. Under either scenario, lengthy and repetitious evidence would have been required, at great cost, on many common issues. Such an impractical result, in my view, would offend s. 171 and the remedial purpose, goals and tenant protection focus of the Act as a whole. The Act seeks to avoid a multiplicity of similar proceedings. Section 15 of the SPPA empowers the Tribunal to exclude unduly repetitious evidence.
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[37] An applicant in a rent abatement hearing before the Tribunal bears the burden of demonstrating entitlement to the abatement and compliance with s. 13 of the Act where that section applies. That burden may be satisfied in a variety of ways which do not invariably require the testimony of the applicant. It may be that the failure by an applicant to testify will result in the dismissal of a claim for rent abatement. A dismissal in those circumstances, however, flows from an insufficiency of proof by the applicant of his or her claim. It does not flow automatically, or necessarily, from an election not to testify. The Authority’s interpretation of s. 13 presupposes that a claimant under s. 13 can be compelled to testify in order to permit cross-examination on the duty to mitigate losses established under s. 13. That argument, in my view, is misconceived. Stated simply, testimonial compulsion forms no part of s. 13 of the Act, whether for cross-examination or other purposes. It follows that s. 13 cannot be understood or interpreted as conferring a right of cross-examination.
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