"[...]
Analysis
(i) Expedited hearing
[24] As set out above, at the time of the order for an expedited hearing, LTB eviction hearings were proceeding only if the matter related to an urgent issue such as an illegal act or serious impairment of safety.
[25] There is no doubt that the grounds set out in the respondent’s notices included conduct that would fall within the above circumstances, justifying an urgent hearing. The appellant’s issue is that some of those grounds were withdrawn at a later stage. The appellant submits that the respondent obtained the urgent date under “suspect” circumstances.
[26] This issue was raised before the LTB. Member Lang noted that the above scheduling decision was not a determination of the merits of the application. On review, Member Sullivan agreed and noted that the appellant had not shown a serious error in the scheduling of the hearing as an urgent matter.
[27] While some of the allegations were withdrawn, those that were pursued still included serious allegations about safety and illegality. The allegations pursued at the hearing included forcible confinement, trespass, and theft, among other issues. The appellant has not shown that the respondent’s conduct in obtaining the urgent date was suspect.
[28] Further, the appellant was granted an adjournment of the urgent hearing date, to prepare, and as matters unfolded there was a second adjournment as well. The appellant’s evidence was heard almost four months after the initial eviction notice.
[29] The appellant has not demonstrated procedural unfairness regarding the scheduling of the hearing.
(ii) Form of hearing and use of video clip
[30] The appellant submits that the hearing should not have been conducted by telephone conference call on the first two dates but does not point to a specific unfairness arising because of the form of those hearing days. The focus of the objection before us is on the use of the video clip from the security camera on the third hearing day.
[31] The third hearing day was scheduled to be heard by videoconference. The appellant submits that he had previously had difficulty participating by telephone but does not provide an adequate explanation for why he did not take steps to attend the third day by video conference. He did not have the technology himself but did not show any efforts to access it. In advance of the hearing date he was invited to say if the form of hearing was prejudicial to him and did not do so. No accommodation was sought. His counsel did participate by videoconference.
[32] The appellant’s counsel now submits that the appellant was forced to have a remote hearing. That is not so. The August LTB notice of videoconference left open the possibility of another form of hearing. The appellant did not pursue that option.
[33] With respect to the use of the video clip, the appellant and his counsel had ample time to review it, with at least seven weeks notice that the video clip would be relied on at the hearing. The appellant’s counsel obtained an adjournment for the specific purpose of having time to review the disclosure and discuss it with his client. The appellant now raises pandemic restrictions as an impediment, but he did not come forward on the return date, through his counsel, and say that he had been unable to prepare with counsel.
[34] On the September hearing day, Member Lang viewed the video showing the appellant take the master keys. Due to the form of hearing, the video was not viewed by the participants at the same time. The Member viewed it, also described what she saw, and, although the appellant suggests that there was an inconsistency between the video and her description, none has been shown. She also gave a description of the video clip in her reasons for decision. No error has been alleged in that description.
[35] The appellant now submits that he did not have the technical ability to view the video in the course of the hearing. Again, the record does not show that the appellant made efforts to participate in the hearing in a different way if he wished, or needed, to do so. Accepting his submission that he is of modest means, that does not necessarily preclude access to videoconference technology. His lawyer was able to participate by video conference. A request for accommodation could have been made to the LTB.
[36] The appellant further submits that the Member “cross-examined” him about the video. However, the record shows that the Member was giving him an opportunity to explain the differences between his account of what happened and the video. She asked: “Can you help me reconcile your testimony with the, the video and the circumstances?” The appellant gave a lengthy factual answer, toward the end of which he said he had not seen the video “exactly” yet and went on to complete his answer. His counsel did not object or request steps to permit the appellant to view the video clip before answering.
[37] The appellant suggests that there was an objection to this use of the video, but the objection relied upon related to a different video. Unlike the video clip about the master keys, appellant’s counsel indicated that he had not been given advance notice that the other video would be relied upon. In the course of that objection, he confirmed that the appellant had notice about the video clip regarding the master keys, distinguishing it from the video that was the subject of the objection.
[38] Relying on Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67, [`893] 1 WLUK 44 (H.L.), the appellant submits that any evidence used to discredit him should have been shown to him while he was testifying so he had the opportunity to explain. Here, the video was not “shown” to him at the same time. However, it was disclosed, express notice was given that it would be relied on, it was put into evidence, and the adjudicator described it. The appellant was represented by counsel. The appellant had ample opportunity to review it in advance in order to prepare for his testimony, and no break was requested so that arrangements could be made for him to review it in order to answer the Member’s question.
[39] The appellant further submits that the Member misdescribed the video as she viewed it. This has not been established.
[40] The appellant also relies on the Ontario Bar Association guide to “Best Practices for Remote Hearings” dated May 28, 2021. That guide, which post-dates the events in this matter, indicates that ideally remote hearings are conducted by video and if a party cannot participate by video, by teleconference. It goes on to say that if the parties are satisfied that no unfairness will result, the hearing may proceed with one or more parties on the telephone and others using video. Although this more recent guidance was not available at the time, it is consistent with the LTB process. The LTB notice of the video hearing specifically invited participants to notify the LTB if a video hearing would cause significant prejudice, and the appellant did not do so.
[41] In the particular circumstances of this matter, there was no procedural unfairness in the use of the video clip regarding the master keys in the hearing.
(iii) Findings on other matters
[42] The appellant submits that prejudicial evidence that was not within the grounds for eviction was wrongly relied upon by the LTB. The appellant specifically refers to testimony from a security guard that the appellant had told him that he was from Africa and should go back where he came from.
[43] The notices did include the appellant’s altercation with the security guard as a ground. In addition, one of the notices specifically noted racist insults as a ground, along with many other particulars of disruptive conduct. The appellant relies on Ball v. Metro Capital Property, [2002] O.J. No. 5931 (Div. Ct.) for this position. However, that case arose in a different context since the landlord had given little or no details in the notices.
[44] Here, there was extensive evidence about the appellant’s behaviour, beyond the remarks he now focuses on. Member Lang relied on all the evidence regarding the allegations of disturbing conduct. Other members of the Co-op gave evidence, one of whom testified that the appellant told her that white people do not like her (she is a person of colour) and made several other highly offensive statements as well. In response to her evidence, the appellant testified that he would never utter racial slurs. Member Lang weighed all the evidence, finding that the appellant did make the offensive remarks.
[45] Member Lang also weighed all of the evidence about the alleged remarks made to the security guard. She considered the absence of an express denial, along with the other evidence. The appellant had ample opportunity to respond to the evidence. There were about seven weeks between the Co-op’s witnesses and the appellant’s testimony.
[46] The appellant has not demonstrated a breach of procedural fairness regarding notice.
(iv) Accommodation of disability
[47] The appellant submits that because of his disability, other approaches short of eviction should have been ordered. He submits that the LTB member erred in failing to consider whether conditions could be imposed that would allow the appellant to continue to live in the Co-op.
[48] There is no question that the LTB is obligated to accommodate a party with disability related needs, as set out in the Code. Further, there is no issue that the appellant is disabled within the meaning of the Code.
[49] The appellant relies on Walmer Developments v. Wolch, 2003 CanLII 42163 (ON SCDC), [2003] O.J. No. 3435 (Div. Ct.). In that case, the tenant’s disability was the cause of the problems giving rise to the landlord’s notice to terminate. She suffered from schizophrenia and, when she did not take her medication, she caused problems. This court determined that the LTB ought to have, and did not, find that her disability could be accommodated. Through accommodation steps, the problems could be addressed before they escalated.
[50] The appellant’s situation is different. Here, the appellant’s disability did not cause the conduct that gave rise to the grounds for eviction. Further, Member Lang specifically considered the appellant’s disability in reaching her decision about eviction. Member Lang also considered the other evidence before her. In the circumstances before her, Member Lang decided to accommodate the appellant’s disability by delaying the eviction for two months.
[51] The appellant has shown no failure to accommodate or other error of law in the LTB decisions challenged on this appeal.
Orders
[52] This appeal is dismissed, and the stay of the eviction order is terminated.
[53] Neither the respondent nor the LTB seek costs against the appellant. There therefore shall be no order as to costs."
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