Attempt to introduce fresh evidence to argue that consent order was induced by misrepresentation, mixed fact and law (Fernandes v. Golle, 2021)

 

A brief recent ruling from the Divisional Court on a dismissed S2 motion to set aside an ex parte eviction order, which serves as a reminder re: attempts to introduce fresh evidence:

Fernandes v. Golle, 2021 ONSC 6773 (CanLII), <https://canlii.ca/t/jldd9>

"[1]               This is an appeal brought by the Appellant Tenants under the Residential Tenancies Act, 2006, S.O.2006, c.17 (the “Act”). On August 10, 2020 the Landlord and Tenant Board made an order terminating the Tenants’ tenancy. The Tenants applied to set aside that order and on August 31, 2021 the Landlord and Tenant Board made an order on consent denying the Tenants’ motion to set aside and providing that the stay of the order terminating the tenancy would be lifted on November 17, 2020. The Tenants seek to appeal both orders. Their appeal was accompanied by a motion to introduce fresh evidence. The Tenants were granted leave to appeal the consent order by Corbett J.

[2]               The basis for the Tenants’ appeal is that the consent order of August 31, 2020 should be set aside because the Landlords induced them to consent to that order by misrepresenting to them that if they consented to the order they would be able to purchase the subject property for fair market value. The fresh evidence that the Tenants sought to adduce is directed at providing an evidentiary basis for the Tenants’ argument that the consent order was induced by a misrepresentation.

[3]               Pursuant to s.210 (1) of the Act the Divisional Court’s jurisdiction to hear appeals from the Landlord and Tenant Board’s orders is limited to questions of law. This appeal raises a question of mixed fact and law. Therefore, the Divisional Court has no jurisdiction to hear the appeal.

[4]               The Respondent Landlords are entitled to their costs of this appeal, which we fix in the amount of $9000.00, all inclusive."

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