|
Appeal - Fresh Evidence (4). Ricketts v. Veerisingnam [this in the context of RTA administrative 'ineffective assistance of counsel' argument]
In Ricketts v. Veerisingnam (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an RTA s.210 appeal, here where the main issue was how the RTA system should consider a party's argument of 'ineffective assistance of counsel' - typically (though not always) advanced as a criminal defence.
The court considers a fresh evidence motion, here in this novel RTA 'ineffective assistance' context:B. Argument Based on “Ineffective Assistance”
New Issue on Appeal and the Fresh Evidence Motion
[33] My colleague would consider the ineffective assistance argument in this court, at first instance, and would admit fresh evidence from the Appellant on this issue. He notes “[a]s normally is the case when ineffective assistance of counsel is raised as a ground of appeal, the fresh evidence motion is granted in the interests of justice.” My colleague cites appellate authority in support of this proposition from the Court of Appeal in criminal appeals in which the ineffective assistance argument was argued.
[34] This is not an appeal from the trial decision of a criminal court. It is an appeal and application for judicial review from an administrative decision over a residential tenancy which was subject to a reconsideration process before the LTB. It is in this context that this court must consider whether to permit the Appellant to raise a new issue in this court [see: Perez v. Governing Council of the Salvation Army of Canada, (1998), 1998 CanLII 7197 (ON CA), 42 OR (3d) 229 (CA); Kaiman v. Graham, 2009 ONCA 77, applying the principle stated in dissenting reasons in R. v. Brown, 1993 CanLII 114 (SCC), [1993] 2 SCR 918, para. 20], and whether to admit the Appellant’s proposed fresh evidence for the first time in this court. The test for admitting fresh evidence on appeal is as stated by The Supreme Court of Canada in Palmer v. The Queen (1979), 1979 CanLII 8 (SCC), 50 CCC (2d) 193 at 205:(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases... ;
(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(3) the evidence must be credible in the sense that it is reasonably capable of belief;
(4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [35] The original hearing before the LTB took place over two days. The Appellant was self-represented on the first day of the hearing, September 25, 2023. One of the respondents and Ms Naeanashannutam testified on the first day of the hearing. At the hearing, the Appellant was clear with the LTB that she was taking the position that the eviction was not in good faith.
[36] Between the first day of the hearing and its resumption on October 27th, the Appellant retained a paralegal to assist her. As quoted by my colleague in his reasons, at the start of the resumption, the paralegal told the LTB that the Appellant was not contesting whether the eviction was in good faith, but instead was pursuing her request that the eviction be deferred for one year in light of the Appellant’s personal circumstances. The LTB noted this concession, as reflected in the transcript, and then the hearing resumed and was completed on October 27th.
[37] The Appellant’s position is that her paralegal abandoned her principal argument contrary to her instructions. It is on this basis that she alleges ineffective assistance by her paralegal and requests that the eviction order be quashed and a new hearing ordered.
[38] Integral to this argument is the Appellant’s position that, because of disability, she was unable to appreciate and address the shortcomings in her paralegal’s representation in a timely way before the Board. My colleague accepts this position on the basis of the unchallenged evidence of the Appellant: the paralegal did not provide evidence, though served with the motion materials, and the Respondents did not cross-examine the Appellant on her evidence.
[39] I would not accept the Appellant’s evidence about the impact of her disability on her ability to address before the LTB the shortcomings in her paralegal’s representation of her, for the following reasons:i. Although I would accept that the Appellant was unable to intervene at the hearing when her paralegal told the LTB that his client was no longer pursuing an argument that the termination was in bad faith, this does not explain the Appellant’s failure to address this issue with the Tribunal between the end of the hearing and release of the Tribunal’s decision – a period of about ten weeks.
ii. The Appellant’s claim that she did not understand what her paralegal had done until she received the Tribunal’s decision is incredible. The Tribunal’s decision does not mention the impugned concession made by the Appellant’s paralegal. To the contrary, the Tribunal’s decision states and decides the question of the Respondents’ good faith – from which an objective reader would understand that the issue had not been conceded at the hearing. The Tribunal’s reasons do not state or rely upon “what her paralegal had done” and so cannot be a basis upon which the Appellant could have understood, for the first time, that her paralegal had conceded the issue at the hearing. [40] Further, I would not accept the Appellant’s submission that she was unable to address the shortcomings in her paralegal’s representation during the Reconsideration process for the following reasons:i. In the knowledge that her paralegal had disobeyed her instructions and failed to pursue an important issue before the LTB, that Appellant continued to retain and instruct the paralegal for the purpose of seeking reconsideration before the LTB. This decision was unreasonable on its face and is not explained by the Appellant’s disability.
ii. The Appellant’s paralegal told the Appellant, in writing, that he would not be advancing arguments on reconsideration addressed at alleged lack of good faith by the Respondents. Even in the face of this clear statement, the Appellant continued to retain the paralegal for purposes of the Reconsideration process. If the Appellant wished to pursue this argument on Reconsideration, her decision to continue to retain the paralegal in the face of his clear communication that he would not advance the issue, was unreasonable and is not explained by the Appellant’s disability.
iii. I would not accept the Appellant’s submission that she could not terminate her retainer of her paralegal because of the short deadline to seek Reconsideration, the difficulty of locating a representative, and her disabilities. The deadline for Reconsideration is thirty days, more than sufficient time for the Appellant to find a new representative or to self-represent before the LTB. At minimum, there is no reason why the Appellant could not have raised the issue of ineffective assistance, requested time to make further submissions on the issue, and advised the LTB of the impact of her disability on her capacity to address the issue within thirty days. This point is demonstrated beyond debate by the Appellant’s original Notice of Appeal – which was delivered on January 31, 2024 – less than thirty days after the original decision. In two clear, concise paragraphs, the Appellant sets out the “ineffective assistance” issue as a ground of appeal. If the Appellant could deliver the Notice of Appeal within thirty days – raising the shortcomings in her paralegal’s representation of her – then she could have raised the issue on Reconsideration within thirty days. [41] In my view, the Appellant was obliged to raise her “ineffective assistance” argument at the earliest reasonable opportunity before the LTB. She could have, but did not, raise it during the ten-week interval between the end of the hearing and release of the LTB’s decision. She could have, but did not, raise it during the Reconsideration proceedings. I would find that the proposed fresh evidence does not meet the first branch of the Palmer test, and I would not permit her to raise the issue for the first time in this court.
[42] Further, it is not clear to me that the proposed fresh evidence would have been potentially decisive before the LTB or could have affected the result (the second and fourth branches of the Palmer test). However, it is difficult to assess the potential impact of the proposed fresh evidence, since the LTB decided the very issue that the Appellant argues her paralegal had withdrawn before the Tribunal. Given this context, had the Appellant satisfied the first branch of the Palmer test, I would have directed that the request to re-open the LTB hearing be directed back for fresh Reconsideration at the LTB. I address the details of this alternative approach below, when considering my colleague’s approach to remedy.
[43] For these reasons – the Appellant’s failure to meet the first branch of the Palmer test and her failure to raise this issue prior to release of the LTB’s decision or during the Reconsideration process, I would dismiss the appeal. . Brodsky v. College of Nurses of Ontario
In Brodsky v. College of Nurses of Ontario (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an appeal, here from "decision of the Discipline Committee of the College of Nurses" that "found that the appellant committed acts of professional misconduct".
Here the court considered the law of fresh evidence:[20] R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, describes the factors to be considered in exercising the discretion to receive fresh evidence. Those factors include:a. Admissibility: is the evidence admissible under the operative rules of evidence
b. Cogency: is the evidence sufficiently cogent in that it could reasonably be expected to have affected the outcome of the decision under appeal; and
c. Due diligence: what is the explanation offered for the failure to adduce the evidence and should that explanation affect the admissibility of the evidence. . Alyange Holdings Inc. v. Dewdney Mountain Farms Ltd.
In Alyange Holdings Inc. v. Dewdney Mountain Farms Ltd. (Ont CA, 2025) the Ontario Court of Appeal allowed an appellate motion, here seeking "a motion for an order striking out portions of the responding parties’ Appeal Book and Compendium on the basis that these documents were not before the motion judge":[7] The responding parties refused to remove the Impugned Documents, arguing that they were appropriately included in the Appeal Book and Compendium by virtue of r. 61.10(1) of the Rules of Civil Procedure and, in particular, subsections (f) and (i) thereof. These subsections provide that the Appeal Book and Compendium shall contain:(f) a copy of the pleadings or notice of application or of any other document that initiated the proceeding or defines the issues in it;
...
(i) a copy of any other documents relevant to the hearing of the appeal that are referred to in the appellant’s factum. ....
[10] It is well established that the evidence considered on appeal should be limited to that which was before the lower court that issued the decision. The reason for this is obvious. As this court explained in Pollon v. American Home Assurance Co. (1991), 1991 CanLII 7117 (ON CA), 3 O.R. (3d) 59 (C.A.), at para. 4, if parties are free to expand the record on appeal beyond that put before the lower court, “the appeal would thereby cease to be from the case on which the judgment below was rendered.” Moreover, as the Supreme Court pointed out in Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, at para. 39, such an approach would be profoundly unfair, since it would give a party who has failed to act with due diligence at first instance a “second kick at the can”, while requiring the opposing party to answer a new case on appeal.
[11] There is nothing in r. 61.10(1)(f) or (i) that would support a different result.
[12] With respect to subsection (f), which refers to inclusion of the pleadings in the Appeal Book, r. 25.06 provides that “pleading[s] shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved” (emphasis added). To the same effect is r. 38.04, which provides that a notice of application shall “state the documentary evidence to be used at the hearing” but, consistent with r. 25.06, not include the evidence itself. Thus, when Di Luca J. ordered that the 2019 notice of application be treated as a statement of claim, it did not have the effect of including the evidence relied on in the application, since to do so would have been contrary to rr. 25.06 and 38.04.
[13] Nor does subsection (i) of r. 61.10(1) assist the responding parties, since a party cannot expand the record on appeal simply by referring to fresh evidence in their factum. This would offend the principles of finality and fairness identified by the Supreme Court in Barendregt. If a party wishes to expand the record on appeal, the proper procedure is to bring a fresh evidence application, which the responding parties have not done.
|
