Issue 1- Was there a lack of procedural fairness?
Did the Board err in relying on prior Board proceedings between the parties?
[16] There is no merit to the Appellant’s argument that the prior prompt payment agreement that was entered into between the Landlord and the Tenants in 2015 was confidential and the Board erred by referring to it. The prior mediated agreements and orders between the parties contained in the Appellant’s Exhibit Book filed in this appeal required the Tenants to pay the rent promptly for a specified period of time or face termination of their tenancy. None of the agreements or orders are stated to be confidential. While mediation proceedings are normally confidential, the settlement agreements and orders resulting from such mediations are not. There is no evidence in this case that the mediated agreements or orders are confidential.
[17] No Rule was brought to the Court’s attention that restricted a prior prompt payment order from being considered in proceedings between the same parties where the Appellant sought to avoid eviction under s.83(2) of the Act by the imposition of another prompt payment order.
[18] The Appellant’s argument that she had no notice of the Landlord’s intention to rely upon the prior prompt payment agreement and that taken by surprise, she was prevented from putting in her own documents in response also lacks merit. The Board’s Rules at the time of the Review Hearing did not require advance disclosure of documents. The Appellant did not request an adjournment to consult her copies of the materials relating to prior proceedings, to obtain further copies of same or to consult duty counsel. The Appellant does not particularize what documents she was prevented from presenting to the Review Board.
[19] The Appellant does not appear to argue that the prior proceedings between the Landlord and the Tenants that are referenced in the Review Order did not occur, or that the Board mischaracterized the same in the Review Order.
[20] Pursuant to section 202 of the Act, the Board has a mandate to “ascertain the real substance of all transactions and activities relating to …a rental unit”. In doing so, the Board may have regard to “the pattern of activities” relating to the rental unit. Section 201 of the Act permits the Board to, among other things, conduct any inquiry that it considers necessary, whether before, during or after a hearing.
[21] Section 15 of the Statutory Powers and Procedure Act, R.S.O.1990, c.S.22 (“SPPA”), which applies to proceedings before the Board, provides that a tribunal may accept into evidence any oral testimony or document regardless of whether same is given under oath or affirmation, and regardless of whether same would be admissible as evidence in a court proceeding.
[22] On cross-examination when the prior proceedings were put to the Appellant, while not being able to recall the particulars, she did not deny that the same had occurred and agreed that she had “been here a lot of times”.
[23] In his closing submissions, the Landlord’s representative provided the Board with the Board file numbers for the prior proceedings. This was admissible by the Board as evidence pursuant to Section 15 of the SPPA. The Appellant did not object to the Board considering the prior proceedings at that time, despite having an opportunity to do so.
[24] Section 16 of the SPPA provides that a tribunal may, in making its decision in any proceeding, take notice of facts that may be judicially noted. This would include the Board’s records of prior proceedings before it between the same parties.
[25] I cannot agree that the Board erred in considering that there had been a prior prompt payment order.
[26] There was no impropriety, unfairness or legal error in the Board considering the prior proceedings.
Did the Board err in finding persistent late payment of rent?
[27] The Appellant submits that the Board erred in finding persistent late payment of rent without documentary evidence of same.
[28] A schedule to the Eviction Notice set out the Tenants’ history of persistent late payment of the rent. The Eviction Notice, including that schedule, formed part of the record before the Board. It would have been clear to the Appellant prior to the hearing from the schedule what late payments the Landlord was relying upon. The Appellant does not argue that she was not actually persistently late in paying the rent or state in what way the schedule was not accurate. She does not particularize what documents she would have submitted to the Board that she was prevented from doing. She did not ask for an adjournment so that she could review the rent ledger, if, in fact, she did not have an opportunity to review it at the hearing, on which the parties appear to disagree. She did not ask for an adjournment to obtain documents to refute the rent ledger. She did not argue that she was prejudiced by her inability to cross-examine a representative of the Landlord with respect to the rent ledger. It is important that issues of alleged procedural unfairness get raised before the tribunal of first instance so that that tribunal has an opportunity to deal with them before the hearing is concluded.
[29] The Board’s finding that the Appellant had persistently paid the rent late was a finding of fact, or of mixed fact and law, that is not open to appeal by the Appellant. There is no error of law.
Did the Board demonstrate bias or breach Constitutional rights?
[30] The Appellant alleges that the Board failed to uphold the rights to an unbiased fair hearing and violated the Appellant’s Constitutional rights. Being devoid of any particulars, this argument is fatally deficient. (Elguindy v. St. Joseph’s Health Care London, 2017 ONSC 4247 (Div.Ct.) at para.38.) The Appellant did not identify anything in the record that would overcome the strong presumption of judicial and quasi-judicial impartiality to which the Board is entitled. (Briarlane v. Limas, 2020 ONSC 7118 (Div.Ct.) at para.29.) There is no basis for finding the Board demonstrated bias or breached the Appellant’s Constitutional rights.
[31] There was no procedural unfairness.
Issue 2- Was there an error in principle in the Board’s exercise of its discretion to refuse more permanent relief from eviction under s. 83(2) of the Act?
[32] The Appellant alleges that the Board made a variety of errors in failing or refusing to grant relief from eviction pursuant to section 83 of the Act. While the Board did grant some relief from eviction, the Appellant argues that it should have simply dismissed the Landlord’s request to evict her. Section 83 of the Act provides that before granting an application for an order evicting a tenant, the Board must review the circumstances and consider whether or not it should exercise its powers to refuse to grant the application. Although the Appellant submits that the Board did not have all the circumstances before it in exercising its discretion under s.83(2), she does not particularize what circumstances the Board did not have that she relies upon.
[33] In this case, as was found in the Second Review Order, the Board considered all of the disclosed circumstances and whether to grant relief from eviction and ultimately found that it would be unfair to do so, but did find that it was appropriate to delay eviction. The Board’s exercise of discretion in this regard, absent an error in principle, is entitled to deference from this Court. (Ali v. New Spadina Garment Industry Corp., 2020 ONSC 3244 (Div.Ct.) at para.47; Oz v. Shearer, 2020 ONSC 6685 (Div.Ct.) at paras.30-31.)
Conclusion
[34] In the result, I find no lack of procedural fairness and no error in principle in the Board’s exercise of its discretion under s.83(2) of the Act. The appeal is therefore dismissed with costs in the amount of $1000. The Sheriff is instructed to ensure that the Tenants are not evicted from their premises prior to the expiration of thirty days from the release of these reasons."
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