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Case Name:
Davidson v. Naveen Bagla
Between
Amanda L. Davidson and Erika H. Rochow, applicants (respondents in
appeal), and
Naveen Bagla respondent (appellant in appeal)
[2006]
O.J. No. 4044
Divisional Court No. 78710
Ontario Superior Court of
Justice
Divisional Court
M.R. Meehan, S. Chapnik and J.M.W. Donohue JJ.
Heard:
September 12, 2006.
Judgment: October 10, 2006.
(24 paras.)
Counsel:
Yan David Payne for the Appellant.
Paul Dusome, for the Respondents.
________________________________________________________________________
The following judgment was delivered by
¶ 1
THE COURT:— This is an appeal of a decision of the Ontario
Rental Housing Tribunal (the Tribunal) dated November 10, 2004 wherein
the appellant landlord was found to have acted outside the provisions of
the Tenant Protection Act, 1997 (the TPA) and the Ontario Human
Rights Code. The appellant seeks an order setting aside that
decision and a further Tribunal decision made December 14, 2004 denying
a Request to Review brought by the appellant.
¶ 2
While the stated grounds of appeal are numerous, in summary, the
appellant alleges that he was denied procedural fairness and the
opportunity to present his case fully and fairly. In brief, the Tribunal
waived the statutory 10-day notice requirement and then refused to grant
an adjournment so he could prepare for and present his case fully. He
requests an order dismissing the applicant's application or sending the
matter back to the Tribunal for a new hearing and costs.
¶ 3
The respondent submits that there was no error of law, that the
appellant experienced no prejudice as a result of the denial of an
adjournment, and that the matter was discretionary and thus, the appeal
should be dismissed with costs.
THE COURT'S JURISDICTION AND STANDARD OF REVIEW
¶ 4
Pursuant to section 196(1) of the TPA, a person affected by an
order of the Tribunal may appeal the order to the Divisional Court
within 30 days of the date of the order, but only on a question of law.
Section 196 also provides the following:
| (4) |
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If an appeal is brought under this section,
the Divisional Court shall hear and determine the appeal and
may,
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| (a) |
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affirm, rescind, amend or replace the
decision or order; or
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| (b) |
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remit the matter to the Tribunal with the
opinion of the Divisional Court.
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| (5) |
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The Divisional Court may also make any other
order in relation to the matter that it considers proper and may
make any order with respect to costs that it considers proper.
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¶ 5
It is well settled law that on a pure question of law, particularly one
that does not engage any special expertise of the Tribunal, the standard
of review is correctness. Dollimore v. Azuria Group Inc., [2001]
O.J. No. 4408 (Div. Ct.).
¶ 6
However, in determining whether the appellant received a fair hearing,
there is no need to apply any particular standard of review. Rather, the
Tribunal is required to comply with the requirements of natural justice
appropriate to the nature of the hearing and the failure to do so will
result in the Tribunal's decision being quashed. Baker v. Canada
(Minister of Citizenship and Immigration), [1999]
2 S.C.R. 817 at para. 18-28. See also Manpel v. Greenwin Property
Management [2005]
O.J. No. 3079 (Div. Ct.).
¶ 7
The Court of Appeal in London (City) v. Ayerswood Development
Corp., [2002]
O.J. No. 4859 enunciated the role of an appeal court in such
circumstances, at para. 10:
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When considering an allegation of denial of
natural justice, a court need not engage in an assessment of the
appropriate standard of review. Rather, the court is required to
evaluate whether the rules of procedural fairness or the duty of
fairness have been adhered to. The court does this by assessing
the specific circumstances giving rise to the allegation and by
determining what procedures and safeguards were required in
those circumstances to comply with the duty to act fairly.
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BACKGROUND
¶ 8
The appellant, Naveen Bagla, is the landlord in the premises municipally
known as 154 Dunsmore Lane, Barrie, Ontario, which is a three-bedroom
house with individual rental units. A rental unit comprises one bedroom
and the use of the common areas, for rent payable in the sum of $400.00
per month.
¶ 9
The respondents, Amanda Davidson and Erika Rochow each occupied a unit
on the second floor of the premises, commencing on February 1, 2004 and
May 1, 2004, respectively.
¶ 10
It was not disputed that, on or about August 2004, the landlord
attempted to enter into new tenancy agreements with the respondents and
the proposed agreements were not in accordance with the TPA.
¶ 11
On August 24, 2004, the landlord moved his wife and child into the
basement of the rental premises. This led to an altercation in which Ms.
Davidson played loud music and according to the appellant, threatened
his wife and young son. As a result, the police were called and, in the
end, they escorted the respondents from the premises, basically locking
them out. It appeared from the evidence that the landlord told the
police that he required the premises for his personal use. As well, the
tenant, Ms. Davidson, who says she suffers from a mental illness called
borderline personality disorder, "cut herself" that evening
and the police drove her to the hospital. There was also an issue at the
hearing about the last month's rent to be given to the tenants.
¶ 12
The aforementioned altercation involving the police occurred on August
27, 2004. On September 7, 2004, the respondent tenants filed an
application with the Tribunal, claiming that the landlord harassed,
obstructed, coerced, threatened or interfered with them. They sought an
order for compensation and to obtain their belongings. On September 13,
2004, the landlord received notice of the tenants' application and of a
hearing scheduled to take place two days later on September 15, 2004.
The appellant's request for an adjournment on September 15, 2004 was
denied. The hearing took place, the Tribunal Member made several
findings of fact, and the tenants' application was allowed on November
10, 2004.
¶ 13
This appeal is rooted in the refusal of the Tribunal to grant the
adjournment. The appellant claims that as a result, he was denied
fundamental justice or more specifically procedural fairness.
THE DECISION OF THE TRIBUNAL
¶ 14
After hearing evidence from the tenants and the landlord, the Tribunal
made several findings of fact, including the following:
| 10. |
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I find that the landlord harassed, coerced,
threatened and interfered with the tenants. I find the landlord
had the local police remove both the tenants because he felt
threatened by Amanda Davidson. No charges were laid and I find
the danger to the landlord's family is being used as an excuse
for his unlawful actions.
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| 11. |
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The landlord had no reason to remove Erika
Rochow other than the fact he felt the tenants were friends.
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| 12. |
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The tenant Amanda Davidson has a disability.
The Ontario Human Rights Code requires all landlords to
accommodate the needs of the disabled to the point of hardship
for themselves. I find this landlord made no efforts to
accommodate the needs of Ms. Davidson.
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¶ 15
The Tribunal made orders against the landlord for the payment of
administrative costs and various compensation to the tenants, including
their last month's rent deposits plus interest. It also made the
following order:
| 1. |
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The landlord must refrain from acting outside
the provisions of the Tenant Protection Act, 1997, and
also refrain from asking tenants to consider that the Act
does not apply to their tenancies.
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THE DECISION ON REQUEST TO REVIEW
¶ 16
In dismissing the landlord's request to review the decision, another
Tribunal Member found that no serious error had occurred in the order or
the proceedings.
¶ 17
Regarding the matter of the adjournment, the Tribunal noted that s. 171
of the TPA requires a balancing of the rights of the parties to
ensure that matters are resolved quickly while not sacrificing their
right to a fair hearing, and that Tribunal Members have the discretion
to consider an adjournment in light of the circumstances of any case.
¶ 18
In this case, due to the tenants' allegation of an illegal lockout, the
application was viewed as an emergency situation and thus, the
discretion was exercised reasonably. Moreover, the Tribunal Member at
the hearing had the opportunity to hear and assess the credibility of
the witnesses and there was nothing in the order to suggest the member's
findings were "unreasonable or capricious or that they cannot be
sustained on the evidence."
THE RELEVANT LEGISLATION
¶ 19
The relevant sections of the TPA are as follows:
| s. |
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41 A landlord shall not recover possession of
a rental unit subject to a tenancy unless,
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| (a) |
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the tenant has vacated or abandoned the unit;
or
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| (b) |
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an order of the Tribunal evicting the tenant
has authorized the possession.
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| s. |
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171 The Tribunal shall 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 be
heard on the matter.
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| s. |
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176(2) The Tribunal may extend or shorten the
time requirements with respect to any matter in its proceedings,
other than the prescribed time requirements, in accordance with
the Rules.
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ANALYSIS
¶ 20
In our view, the Tribunal did not afford the appellant an adequate
opportunity "to know the issues and be heard on the matter,"
based on the following:
| 1. |
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This was not a typical landlord/tenant
dispute where the issue is often non-payment of rent. In this
case, the principal issue before the Tribunal was whether the
landlord had harassed, coerced, threatened or interfered with
the tenants, and whether in doing so he illegally locked them
out of the premises.
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At the outset of the hearing and throughout,
the landlord requested an adjournment, insisting that he had
direct evidence that bore on the very question before the
Tribunal. For example, at page 37 of the transcript, the
following exchange took place between the Tribunal Member,
Elizabeth Brown, and the landlord, Mr. Bagla, who appeared at
the hearing in person without legal assistance:
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Ms. Brown: |
Now, you're requesting
an adjournment? |
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Mr. Bagla: |
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Yes, we want to ... we're requesting an
adjournment.
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Ms. Brown: |
On what grounds? |
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Mr. Bagla: |
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For the reason that I need more time to
gather evidence from the Barrie Police, ...
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I just received the Notice of Hearing on
September 13th of this year, 2004, which wouldn't give me enough
time to contact the Barrie Police to receive any occurrence
reports and/or memo book notes of the officers that attended at
the residence.
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Throughout the hearing, Mr. Bagla
consistently contended that the Barrie Police would have
relevant evidence to give as to what occurred on August 27, 2004
when the tenants were escorted from the premises. It was the
landlord's evidence that he called the police as a result of
threats made by Ms. Davidson to his wife and baby boy, that he
had no intention of evicting the tenants, and that it was the
police who, in their discretion, decided to escort the
respondents from the premises.
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Indeed, it is not disputed that it was the
police who escorted the tenants from the premises. Clearly,
their evidence as to the reasons for this and the landlord's
part in it, if any, would be relevant to the Tribunal findings
and the issue of whether there was in fact, an illegal eviction
by the landlord.
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| 2. |
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After the altercation and ultimate
"eviction" of the tenants, they jointly signed an
Application regarding Tenant Rights. Although the application
was dated August 27, 2004, it was not filed with the Tribunal
until September 7, 2004. Given that the matter was dealt with as
an emergency situation justifying an abatement of the 10-day
notice period under the TPA, it appears unusual that the
tenants did not file the application sooner. Moreover, it took
over two months from the date of hearing, September 15, 2004, to
the rendering of the decision on November 10, 2004.
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| 3. |
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The tenants did not request re-instatement or
re-entry into the premises. At para. 9 of the application, the
following appears:
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| 9. |
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The landlord must allow me to move back into
the rental unit and must not rent the unit to anyone else. Is
the unit currently vacant?
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Yes |
No |
Don't know |
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[ ] |
[ ] |
[ ] |
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All of question 9 remained blank. Under
question 10 "Other", the tenants requested in their
words, "allow me to obtain my belongings or pay me
compensation."
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This too militates against a finding of
urgency, since it is common ground that both tenants had
retrieved their belongings prior to the hearing.
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| 4. |
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The landlord was given 48 hours' notice of
the proceeding; he attended without counsel whereas the tenants
were represented by duty counsel; and he was denied an
adjournment in circumstances where he insisted that given more
time, he could provide relevant evidence regarding the issues in
dispute between the parties.
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| 5. |
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Several other occurrences in the course of
the Tribunal hearing lead to the conclusion that the landlord
was not given a meaningful opportunity to defend the allegations
made against him by the tenants. For example, the adjudicator
frequently interrogated the landlord and interrupted his
cross-examination of witnesses. (See, for example, page 52 of
transcript.) She also refused to fully accept into evidence
audiotapes the landlord had made of conversations with one or
more of the tenants that he said contradicted
"everything that's happened today." Indeed, the
adjudicator made it clear that she would not listen to the tapes
(at p. 79):
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"I'm not listening. I don't watch videos
for half an hour. You have an obligation to present concise
evidence and I don't listen to people bicker back and
forth."
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| 6. |
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The Tribunal Member made rulings without any
evidentiary basis to support them. Her finding that the landlord
made "no efforts to accommodate the needs of Ms.
Davidson" was entirely inappropriate since there was no
human rights complaint before her, and no indication of what
efforts would have been appropriate. The only evidence regarding
this appears to be Ms. Davidson's admission that she suffers
from borderline personality disorder, and was cutting herself on
the day in question. When asked if the landlord was aware of her
condition, Ms. Davidson answered at p. 57:
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"I don't know. I don't believe so. I
don't generally tell people that I have a mental illness, unless
it's required."
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There is no indication as to what the
needs of Ms. Davidson might have been or how they could
have been accommodated. Since the landlord had no knowledge
of the respondent's condition, it would have been impossible
for him to accommodate her needs in any event.
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| 7. |
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The respondents rely on the fact that when
the Tribunal Member asked the landlord whether he locked the
tenants out of the house, he answered, "Yes, I have."
In answer to the next question as to whether he had an eviction
order from the Tribunal, Mr. Bagla answered, "The Barrie
police removed them from the premises." When asked on what
grounds, he responded:
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On the grounds that I reside there as well.
We share a kitchen and a bathroom. On the grounds, I believe,
that the notes of the occurrence report and/or the notes, memo
book entries of the Barrie police are imperative in this matter,
whereas I can attempt to prove that false statements have been
made to the Ontario Rental Housing Tribunal and both to the
Barrie police.
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Not only did the Tribunal Member fail to
grant the adjournment, but she acted as a combatant to the
landlord, chided him for not knowing the law, and provided him
with no assistance whatsoever as an unrepresented party.
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CONCLUSION
¶ 21
Due to the above, we have no hesitation in finding that the appellant
was denied natural justice and a full and meaningful opportunity to be
heard. It appears to us that, in the particular circumstances of this
case, fairness was sacrificed on the altar of efficiency. The Tribunal
Member erred in not providing the landlord with an adequate opportunity
to know the issues and be heard on the matter, as required by s. 171 of
the TPA.
¶ 22
In our view, the Tribunal's decision to abate the normal notice period
and then not grant the adjournment was unreasonable and constituted a
fundamental error in law and a miscarriage of justice.
¶ 23
Accordingly, the appeal is allowed. The orders of the Tribunal dated
November 10, 2004 and December 14, 2004 are set aside. The matter is
referred back to the Tribunal to be heard by a different Tribunal
Member.
¶ 24
The appellant is entitled to his costs of the appeal, which we fix in
the sum of $1,500.00 payable in the cause.*
M.R. MEEHAN J. S. CHAPNIK J.
J.M.W. DONOHUE J.
QL UPDATE: 20061016
cp/e/qw/qlgxc/qlrsg
*NOTE: the cost award was later
increased following submissions by Mr. Payne.
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