Due Diligence (Exercise of)

🥷 Caselaw.Ninja, Riverview Group Publishing 2025 ©
Date Retrieved:	2025-06-06
CLNP Page ID:	2507
Page Categories:	[Hearing Process (LTB)]
Citation:	Due Diligence (Exercise of), CLNP 2507, <https://rvt.link/fp>, retrieved on 2025-06-06
Editor:	Sharvey
Last Updated:	2025/06/05

Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541 (CanLII)

[7] We agree that if a Tribunal denies a party an opportunity to be heard for no appropriate reason that would be an error of law. However, that is not the case here. In this case, the Review Board found that the landlord’s non-appearance at the hearing of October 31, 2016 was due to a lack of diligence on the part of the landlord’s head office staff.

[8] Lack of diligence in dealing with court proceedings is a reason for refusing to set aside an order where a party has failed to appear. In other words, it was not an error in law for the Review Board to find that lack of diligence constituted a reason not to grant the landlord a rehearing. If parties are not diligent in dealing with legal proceedings then they cannot demand that a Tribunal waste its resources by rehearing matters a second time. To allow this would undermine the ability of the administration of justice to deliver timely, cost-effective and final orders.

[9] According to the landlord, the Review Board had no evidentiary basis from which to draw the inference that the landlord was not diligent. We agree that if a Tribunal makes a factual finding without any evidentiary foundation to support that finding that would be an error of law. However, that is not what occurred here. In this case, the Board made the finding of lack of diligence after considering the following evidence:

(1) The fact that the Notice of Hearing and the Order were mailed to the landlord’s correct corporate address for service;

(2) The fact that under the Act a mailed document is deemed to be received 5 days later; and

(3) The fact that neither the Notice of Hearing nor the Order were returned to the Board by Canada Post.

[10] On that basis, the Review Board found that it was “highly unlikely that both documents sent to the correct address went astray in the postal system”. Thus, it drew the inference that it was more likely that the documents went astray in the landlord’s head office and no one from the landlord’s head office was called as a witness.

[11] In view of this evidence, there was an evidentiary basis for the Review Board to make the finding it did about the landlord’s lack of diligence. The Review Board was entitled to weigh the evidence that it heard, including the evidence of the landlord’s witness, and this Court has no jurisdiction to reweigh evidence with a view to substituting our factual findings for those of the Board.

[12] For these reasons, the appeal is dismissed.

Khani v. Zhang, 2019 ONSC 1362 (CanLII)

[21] In Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541 (Div. Ct.), where circumstances where a landlord failed to appear at a Board hearing and sought a review on the basis that it did not have a reasonable opportunity to participate, this Court held that it was not an error in law for the Review Board to find that a lack of diligence constituted a reason not to grant the landlord a re-hearing. The Divisional Court accepted that the Board in that case had an evidentiary basis for its finding, as the Notice of Hearing was mailed to the landlord’s correct address, mail is deemed to be received five days later under the Act, and the Notice of Hearing was not returned to the Board by Canada Post.

[22] S. 191(1)(f) of the Residential Tenancies Act provides that a notice or document is sufficiently given to a person other than the Board “… (f) by sending it by mail to the last known address where the person resides or carries on business”. It provides that a notice sent by mail is deemed given on the fifth day after mailing.

[23] In conducting a preliminary review of the Applicant’s request for a review, the Board conducted itself in accordance with the provision of the governing statute. The Vice Chair considered the Applicant’s submissions as to why she did not receive notice of the hearing that resulted in the termination order. In so doing, the Vice Chair made findings of fact in respect of which he is entitled to deference. In interpreting the statutory provisions governing service of the Notice of Hearing, the conduct of a preliminary review of the Applicant’s request for a review, the decision given by the Vice Chair falls within the range of outcomes that was open to him on the evidence and the applicable law.

[24] Despite the able arguments of counsel for the Appellant, we do not agree that it was an error in law in the exercise of decision making before the Tribunal without having conducted an oral hearing in all of the circumstance.

[25] Wherefore, the appeal is dismissed.

Shewen v. Reid, 2024 ONLTB 25484 (LTB-T-056551-22-RV)

5. The Landlord claims she did not receive the notice by mail as that is not the correct address. The Landlord acknowledge receiving the notice of hearing by e-mail; however, it went to her junk mail folder. She did not check her junk mail folder until after the hearing.

6. In Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541 (Div. Ct.) (CanLII), the Divisional Court affirmed that a party to a Board proceeding must exercise appropriate diligence to be aware of and to attend a Board proceeding. In this case, I find the Landlord’s lack of diligence to be the reason why she did not receive the notice of hearing.

...

13. Khani v. Zhang, 2019 ONSC 1362 elucidates the principle that parties to a dispute before the Board must demonstrate due diligence in their engagement with the process. In this instance, I find the Landlord’s oversight in monitoring her email and ensuring her contact information was up to date did not meet the requisite level of due diligence. This lack of diligence directly contributed to her failure to participate in the initial hearing, and as such, does not justify granting a review. Accordingly, the Landlord’s request for review is denied.