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Fairness - Merger/Separate Hearings. Wright v. Hardit
In Wright v. Hardit (Div Court, 2024) the Divisional Court dismissed an RTA s.210 'persistent payment of rent' [RTA 58(1)] appeal, here in the context of a pre-eviction s.29 (flood) repair application and a s.82 rent-withhold tactic to pressure the LL into making repairs.
On appeal the tenant argued that the hearing of the LL's eviction application before, and separately from, the repair application - even though the latter was filed first and was integral to the rent-withhold tactic, was procedurally unfair (which the court held to be a question of law):[6] The Member found as a fact that the tenant had been late nineteen out of the twenty months and noted that there was no evidence to the contrary. The Member therefore found that there had been a persistent failure to pay rent when due. The Member considered relief from eviction under s. 83 of the RTA, including not only the tenant’s deliberate withholding of rent but also her personal/family circumstances, and gave a short postponement of the eviction.
[7] On review, the Member noted that the hearing recording showed that the parties were aware of the issues to be determined and exercised their rights to be heard on those issues. The Member noted the tenant’s evidence at the hearing and found that there was ample evidence that the tenant had been persistently late. The Member also found that the Decision under s. 83 fell within a reasonable range of outcomes.
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[11] The tenant has not shown that the scheduling in this case was unfair. It was within the LTB’s discretion and arose in the context of alleged (and ultimately proved) substantial arrears of rent. Further, the tenant could have, and did not, bring a motion to have her applications heard together with the landlord’s.
[12] With respect to the arrears application being heard separately from the application based on persistent late payment, the RTA permits the two different types of applications and does not require that they be heard together. Further, the Member expressly considered this Court’s decision in Tataw v. Minto Partner L.P., 2023 ONSC 4238, in which the Court disagreed with the submission that it was unfair to bring separate applications for arrears of rent and late payment: at para. 13. The Court held that these two types of applications were related but were different problems with distinct processes that usually lead to different remedies: at paras. 14, 19.
[13] It was not procedurally unfair for the LTB to hear the landlord’s application separately, nor was it procedurally unfair to refer to the prior LTB decision about arrears in the Decision. The tenant participated fully in the prior application.
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