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. Riddell v. Huynh
In Riddell v. Huynh (Div Ct, 2021) the Divisional Court granted a tenant's appeal on a 'purchaser possession' termination when the prior landlord had tried several times to evict and the 'sale' was to her brother. At the LTB hearing the landlord (who was pursuing the eviction on behalf of her brother) redacted the purchase price from the APS, and the Board restricted cross-examination on this key issue:[10] In one area, however, the Board erred in law and the error gave rise to substantive unfairness to the tenant. The critical issue before the Board was the bona fides of the purported sale from the landlord to her brother. As a long line of cases before the Board shows, where the sale transaction is to a close family member, this is a warning sign, or flag, that the transaction may not be genuine. In this case, the unit was not exposed to the open market. No real estate agent was involved. It was a private deal. The agreement of purchase and sale was disclosed, but the price of the transaction was redacted. The appellant requested a complete copy of this critical document. This request was denied by the Board and no proper justification was given for denying this request.
[11] This was no “fishing expedition”. The price was one of the critical indicia to consider in determining the bona fides of the transaction. So were payment terms and financial arrangements that were made to meet those payment terms. Although the prior applications to evict the tenant for “personal use” did not give rise to an issue estoppel or res judicata, they did provide context for the dispute. So, too, did the history of conflict, including evidence adduced by the tenant that the landlord had recently tried to impose another illegal rent increase and had threatened to sell the unit if the tenant did not accede to the improper demand for rent. Just days after this, the landlord purported to agree to the sale to her brother.
[12] There were many “alarm bells” that this was another attempt by the landlord to oust the tenant without a proper justification. The tenant was entitled to test the evidence relevant to this issue, and this included full details of the sale transaction. These were proper questions, the Board erred in disallowing them, and this error may have affected the outcome. If the price and the payment arrangements did not reflect reasonable commercial terms, the inference that the transaction was not genuine would have become more and more irresistible.
[13] On my reading the erroneous ruling respecting full disclosure of the terms of the sale transaction followed as an extension of the Board’s efforts to constrain the appellant’s conduct in the hearing within reasonable bounds. The Board’s discretion is broad in respect to the conduct if hearings, but not so broad as to preclude a party from testing critical evidence on a key issue in dispute.
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