Hearsay Evidence (LTB)

Manikam v. Toronto Community Housing Corporation, 2019 ONSC 2083 (CanLII)

The Dangers of Hearsay Evidence

[29] As explained by David Watt, Watt’s Manual of Criminal Evidence, 2018 (Toronto: Thomson Reuters Canada Limited, 2018) [Watt’s Manual], at p. 373:

There are at least four potential sources of error when a witness describes an event that she claims to have observed: i. perception; ii. memory; iii. communication; and iv. sincerity…[t]o diminish the possibility for error because of the dangers inherent in a witness’ description of a previous event, a witness is generally required to testify under three conditions: i. personal presence before the trier of fact; ii. under oath or its equivalent; and iii. subject to cross-examination.

The principle reason for the exclusion of hearsay is the absence of contemporaneous cross-examination. It is cross-examination that may best expose defects in perception and memory, as well as ambiguity in communication and want of sincerity.

Did Admitting and Relying on the Hearsay Evidence in this Case Constitute a Denial of Natural Justice?

[37] As already noted, answering this question requires assessing whether the requisite level of procedural fairness has been accorded, taking into account the Baker factors.

The Nature of the Decision Being Made and the Process Followed in Making It

[38] The decision being made was a very important one. Losing one’s home is a very serious matter for anyone. Losing a place in subsidized housing can have even more devastating consequences. Subsidized housing is reserved for those who cannot afford to rent in the regular market. If one is evicted from a subsidized unit, the waiting lists are such that it could take years before an individual can obtain a new subsidized unit. The Tenant submits that it could take up to 20 years. The Landlord admits it is a long wait, but disputes that it is 20 years.

[39] In this case, the process followed for making the decision was one where the only evidence available to support the decision were the on-scene officer’s notes. The Tenant was given no opportunity to cross-examine the police officer who took the notes and, more importantly, the key witness against her.

The Nature of the Statutory Scheme and the Terms of the Statute Pursuant to Which the Body Operates

[40] One of the Act’s purposes is to provide protection for residential tenants from unlawful eviction. The Act is remedial legislation with a tenant protection focus. It must be given a fair, large, and liberal construction to ensure the attainment of that object. If there is any ambiguity in the interplay between the various sections of the Act, it should be resolved in accordance with the tenant protection focus (Matthews v. Algoma Timberlakes Corp., [2010] O.J. No. 2710 (C.A.), leave to appeal refused [2010] S.C.C.A. No. 369; Price v. Turnbull’s Grove Inc., 2007 ONCA 408 (CanLII) at para. 44).

[41] Section 183 of the Act requires the Board to 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” (emphasis added). Thus, the Act requires the Board to balance the need for expedition with the need for procedural fairness.

[42] Section 10.1 of the Act gives a party to a proceeding the right to cross-examine a witness while s. 12(1) gives the Board the right to summon a witness to testify under oath or affirmation at a hearing. Thus, there were procedures available to the Board that it could have potentially used to ensure that the Tenant had the right to cross-examine the key witness against her.

The Importance of the Decision to the Individual Affected

[43] The Tenant has lived in subsidized housing all her life. As a result of the decision she has lost her home of 16 years. She cannot afford to rent in the regular market. The decision may result in a permanent loss of subsidy for the Tenant and, it will take many years before she has a chance of obtaining another subsidized unit. The decision has deprived the Tenant of one of the essentials of daily living – housing.

The Legitimate Expectations of the Person Challenging the Decision

[44] Given the Act’s tenant protection focus and the importance of the decision to the Tenant, there was a legitimate expectation by the Tenant that she would have the right to test the key evidence against her by way of cross-examination. This expectation is underscored by the fact that Member Whittick based her decision on credibility findings. It is unfair that the Landlord should have had the opportunity to test the Tenant’s credibility, while the Tenant had no opportunity to test the credibility of the Complainant.

Respect for the Procedural Choices Made by the Decision-Maker Itself

[45] In this case, there is no question that the Board is an expert tribunal and that it had the discretion to admit the double hearsay evidence at issue. However, before doing so, Member Whittick did not ensure that this very prejudicial evidence could be admitted without compromising procedural fairness.

[46] We note that in a recent Board decision, SWT-12392-18 (re), 2018 CanLII 42489, the Board warned against the undue reliance on hearsay evidence when “ the reliability of which is neither readily apparent from the trustworthiness of its contents nor capable of being meaningfully tested at the hearing”(p.2).

Conclusion re Procedural Fairness

[47] Taking into account all of the circumstances and the Baker factors, it is our view that the Board breached procedural fairness by admitting and relying upon the hearsay evidence at issue.