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Homelessness - Residential Tenancies. Bourgoin v. Schneider
In Bourgoin v. Schneider (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an RTA appeal, here against the tenant's argument that an adjournment denial breached procedural fairness.
In addressing this fairness issue - which has no standard of review (SOR), and is commonly argued as equivalent to a question of law - the court refuses to acknowledge this de facto higher SOR standard. Instead, it seemed to require proof of a fairness breach before it reached that higher SOR [ie. "denial of procedural fairness, if proven [SS italics], qualifies as an error of law": para 29], which IMHO strains credulity in a classic chicken-and-egg manner. Parties are entitled to know the SOR to be accorded with respect to an issue before it can be argued.
In justice to the court, it does address the fairness issue thoroughly in a fashion that is equal to an issue of law analysis [at paras 30-33], but IMHO the court is still struggling with this fairness-'expeditious' tension in an area of law where a mistake can result in homelessness:[26] The tenant’s second and third grounds of appeal are interrelated by asserting that the LTB erred in law by exercising its discretion to refuse the tenant’s request to adjourn the hearing of the application for her to be represented by her counsel of choice. These grounds state the following:“The Landlord and Tenant Board erred in law in breaching procedural fairness in the hearing process by refusing an adjournment to the appellant in the circumstances, where she had attained legal counsel early in the process, but such counsel was unfortunately for urgent medical reasons subject to a surgery on the date of the hearing, the Landlord and Tenant Board was advised thereof in advance, and there would have been no prejudice to any party to the hearing had an adjournment been granted.”
“The Landlord and Tenant Board erred in law in breaching procedural fairness by holding that ‘the tenant did not have an absolute right to legal representation’.” [27] In my view, these grounds of appeal do not raise a question of law.
[28] A request to adjourn a hearing does not raise a question of law but instead raises a question of mixed fact and law that involves the exercise of discretion: Oz at para 35, citing BA International Inc. v. Ontario (Labour Relations Board), 2005 CanLII 45405 (ONSCDC) at paras 10-11 and 14; Henye v. Minto Apartment Limited Partnership on behalf of the Registered Owners, 2025 ONSC 2219 (Div Ct) at para 23; Kalin v. Ontario College of Teachers, 2005 CanLII 18286 (ONSDC) at paras 30-31. It follows that the LTB’s decision to not grant the tenant’s request to adjourn the eviction hearing cannot ground an appeal to Divisional Court: Ibid; ss. 210(1) of the RTA.
[29] In any event, I would see no basis for the tenant’s claim that the LTB erred in not granting the adjournment request. A denial of procedural fairness, if proven, qualifies as an error of law: O’Shanter Development Company Ltd. v. Barbara Augustin, 2021 ONSC 1720 (Div Ct) at para 4. However, the denial of an adjournment request on a proper exercise of discretion is not a denial of procedural fairness and an appellate court will defer to a tribunal’s discretionary adjournment decisions absent an error in principle or a failure to account for relevant considerations: Anca International Holding Group Inc. v. Zhao, 2024 ONSC 3397 (Div Ct) at paras 4, 14-15.
[30] In this case, I see no basis for the tenant’s claim that the LTB erred by not adjourning the April 10, 2025 hearing. The tenant asked to adjourn the hearing shortly before the return of the LTB hearing as her counsel purportedly required an urgent and unexpected surgical procedure. Importantly, by letter to the LTB dated March 31, 2025, tenant’s counsel wrote that he would also be unable to attend the April 10, 2025 hearing as he had a trial scheduled in the Ontario Court of Justice for April 10 and 11, 2025. In effect, tenant’s counsel was already double-booked with both a provincial court trial and the LTB hearing on April 10, 2025 making him unable to attend the LTB hearing in any event, regardless of the surgical procedure. It was unclear when the provincial court trial had been scheduled.
[31] In opposing the tenant’s request to adjourn the LTB hearing, landlord’s counsel noted that the case was not complicated as the tenant was not contesting the purchaser’s good faith intention to buy the Premises and reside there, as the tenant conceded to the LTB at the hearing. The LTB also heard that any delay from adjourning the LTB hearing would cause the purchaser irreparable harm as she was homeless and paying expensive rent for interim accommodation after selling her former home to close the transaction to buy the Premises. After canvassing the issue of prejudice with the parties, the LTB took a recess to consider the merits of the tenant’s request to adjourn before deciding to not adjourn the hearing. In the circumstances, I find no procedural unfairness with the LTB’s decision to decline the adjournment request. There is no absolute right to legal representation at a hearing before the LTB and the tribunal recognized the time-sensitive nature of the case given the tenant’s refusal to vacate, the impending closing of the APS transaction, the tenant’s acceptance of the purchaser’s good faith intention to close the APS transaction and occupy the Premises, and the prejudice to the landlord and the purchaser by delaying the eviction application hearing. In declining the tenant’s request to adjourn the hearing, the LTB gave a reasoned and balanced decision for declining the adjournment request: see paras 1 to 3 of the Order dated May 21, 2025. As Favreau J. (as she then was) noted in granting a motion to quash an appeal from an order of the LTB in Mubarak v. Toronto Community Housing Corporation, 2022 ONSC 382 (Div Ct) at para 35, the LTB has a high volume of proceedings, is entitled to control its own process to ensure that its cases are dealt with efficiently. The LTB exercises wide discretionary latitude in deciding whether to adjourn a scheduled hearing, with the scope for judicial intervention being correspondingly limited: Sterling v. Guillame, 2021 ONSC 1160 (Div Ct) at para 29, citing Flamboro Downs Holdings Ltd. v. I.B. of T.C.W. & H. of A., Local 879, 1979 CanLII 1669 (Div Ct); Turner v. Dong, 2024 ONSC 5081 (Div Ct) at paras 37-38.
[32] In Solomon v. Levy, 2015 ONSC 2556 (Div Ct) at paras 39-40, the Divisional Court stated:[39] While the granting of adjournments is in the discretion of the Board member hearing an application, the general approach of the Board is informed by section 183 of the Act, which directs the Board to “adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and to be heard on the matter.”
[40] Accordingly, the Board member must take into account the public interest in resolving a case as soon as possible. The key question becomes how to balance the rights of the parties to ensure that matters are resolved quickly while not adversely affecting their respective rights to a fair hearing. [33] In denying the tenant’s request to adjourn, the LTB considered her submissions for seeking the adjournment request and chose to not grant the request. Its decision was based on the prevailing facts and circumstances of the case and made after hearing the parties’ submissions on the request to adjourn. The LTB found that an adjournment was not warranted given the competing interests and had proper grounds for refusing to delay the eviction hearing that fell within the range of acceptable outcomes. In my view, it cannot be said that the LTB erred in principle, failed to consider relevant factors, conducted itself in arbitrary fashion, or denied natural justice by denying the tenant’s request to adjourn the application hearing. . Starcevic v. Silvercore Properties Inc.
In Starcevic v. Silvercore Properties Inc. (Div Court, 2024) the Divisional Court, while conducting an RTA case conference, reflects starkly the contrast of modern Ontario residential tenancy law and more fundamental beliefs and needs - something coming in more focus with the homelessness and housing crises:[3] The tenants have delivered a motion to extend the time for them to perfect their appeal based on a number of grounds that they state in constitutional terms.
[4] Ms. Ellison advises that she is a member of a First Nation and she calls on the Prime Minster and the Premier to act as her Guardians in this proceeding. Whatever duties the government may owe to Indigenous Canadians, I am satisfied that the tenants’ landlord and tenant appeal may proceed without the need for the tenants to be represented by government guardians.
[5] Ms. Ellison’s rent is paid by ODSP. Mr. Starcevic pays his rent on receipt of his monthly OAS. But they both insist on paying rent at the initial rate set out in their lease in 2018. They refuse to recognise the lawful rent increases recognized by the Landlord and Tenant Board under the Residential Tenancies Act, 2006, SO 2006, c 17. Ms. Ellison is not willing to direct ODSP to pay the increased rent and Mr. Starcevic chooses to forward only his share of the original rent.
[6] The eviction order made by the board allowed the tenants to void the order and stay in their premises if they paid the arrears they had amassed by ignoring rent increases for a number of years. Matheson J. required the tenants to pay their arrears to maintain the stay on the eviction order while this appeal proceeds.
[7] The tenants are simply unwilling to pay. They are offended that the multinational corporation that owns their premises just wants money from them and will not treat them like human beings.
....
[14] It is incongruous to me that the tenants’ alleged notion of a landlord treating them as human beings is not about both sides living up to their promises and legal obligations. Rather, the tenants raise technicalities to try to avoid the topic at hand. They do not want to pay their lawful rent. Perhaps they cannot readily afford to pay increased rent. That if that is so, it may be a question for ODSP and OAS administrators. A landlord is not required to bear the brunt of tenants’ financial issues.
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[16] In my view, both sides have made out bases for relief.
[17] The tenants have refused to follow the directions of two judges of this court that protected their right to stay at the premises while their appeal is being heard. They are stalling and raising non-sequiturs in relation to the arrears. It is not dehumanizing or unconstitutional to require tenants to pay the lawful rent for their premises. They just cannot or will not pay. In my view the stay pending appeal should be and is hereby lifted. The board’s order dated November 23, 2023 is therefore fully enforceable pending the hearing of the appeal. . Porringa v. Everitt and Lundy
In Porringa v. Everitt and Lundy (Div Ct, 2021) the Divisional Court heard a valiant Charter attempt by an 'unauthorized occupant' to preserve his RTA appeal against the landlord's motion to quash it. The chief tenant had been already ordered terminated and evicted but the appellant 'unauthorized occupant' wanted to preserve his appeal, and the automatic stay on filing an appeal. His case fell on the easiest grounds available to the judge: inadequate evidence to substantiate his Charter grounds. However, but in doing so (IMHO) the judge overstated the law by stating: "His occupancy of the Premises is not covered by the RTA. Mr. Porringa is an “unauthorized occupant” since he did not have a tenancy agreement with the Landlord" [para 28]. Properly, section 104 of the RTA plainly countenances the existence of such unauthorized occupants and gives them 'rights' in some circumstances, essentially a right to become a 'full' tenant if the criteria of s.104(4) are met.
But the case is most compelling for pointing up the reality that older, disabled and otherwise commonly discriminated-again occupants, if they do manage to obtain shelter in this harsh private market, remain perpetually at risk of their 'security of person' in this country:[26] Lastly, Mr. Porringa argues that he occupied the finished lower level of the house living entirely separate and the Landlord was obligated to include Mr. Porringa in his eviction action along with Mr. Everick and he intentionally chose not to do so, which has certainly had major implications for Mr. Porringa’s occupancy. Furthermore, it is Mr. Porringa’s position that it should not have been permitted by the RTA for the Board to exclude him from Mr. Everick’s eviction proceedings because the latter had already decided to consent to the eviction.
[27] A “tenant” is defined in s. 2(1) of the RTA as:a person who pays rent in return for the right to occupy a rental unit and includes the tenant’s heirs, assigns and personal representatives, but “tenant” does not include a person who has the right to occupy a rental unit by virtue of being,
(a) a co-owner of the residential complex in which the rental unit is located, or
(b) a shareholder of a corporation that owns the residential complex; (“locataire”). Mr. Porringa concedes in his Factum and in his evidence that he is not a “tenant” as defined by the RTA. It therefore remains that Mr. Porringa is an “unauthorized occupant” as stated in the Board Order. He adds that he is an elderly man with underlying health conditions and tight finances. Furthermore, he often remarks about the criminality of the Board member, Mr. Lundy, and his colleagues. In his Factum, for example, Mr. Porringa puts forward conspiracy theories that the audio recordings of the hearing have been edited or tampered with, that the Landlord and the Board unethically and illegally interfered with Mr. Porringa’s request for transcripts of the recorded telephone hearing and that there was a disruption of his mail service where one or more local postal employees agreed to assist in the illegal activity. Mr. Porringa states in his Factum that “the [Board] must be stripped of its misused powers in this particular case and a full public inquiry into this rogue government agency is needed by judicial order”. I find that Mr. Porringa has not provided any evidence to support his claims about discrimination due to his age, his health condition and the criminality of the Board and Mr. Lundy. In addition, he has not provided any evidence that the Board misused its powers and is a “rogue government agency”. I find that Mr. Porringa has failed to show that any of his Charter rights or rights in the Code have been breached by the Landlord and/or the Board.
[28] Based on my review of the evidence provided, there is no evidence to support a breach of Mr. Porringa’s rights. His occupancy of the Premises is not covered by the RTA. Mr. Porringa is an “unauthorized occupant” since he did not have a tenancy agreement with the Landlord. It was within the Board’s jurisdiction to make the Order of July 28, 2020. I find that Mr. Porringa’s appeal is devoid of merit and I quash his appeal pursuant to s. 134(3) of the Courts of Justice Act. Given this finding, I need not address the other issues raised by the Landlord.
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