Mistaken Date (Review)

King-Winton v. Doverhold Investments Ltd., 2008 CanLII 60708 (ON SCDC)

[2] The fact is, for whatever reason, the tenant thought the date was September 28th. Perhaps that resulted from discussions held on August 24th at the Board before Member Borgon, some of which, perhaps not all, were transcribed. Clearly on August 24th, the issue was the date to which the hearing would be adjourned. Even in its own documentation (see page 50 of the Appeal Book), there is a notation of the new date being September 28th and then a scratching out of that, “8” to a “1”. Perhaps the date of August 28th, the date of the notice to her, confused her. The reality is the tenant has never had an opportunity to be heard. We are of the view she is entitled to a hearing.

[3] Being reasonably able to participate in the proceeding must be interpreted broadly, natural justice requires no less. The tenant has never delayed in pursuing her remedies.

Zaltzman v. Kim, 2022 ONSC 1842 (CanLII)

[2] I am satisfied that the Tenant did not receive notice of the hearing that resulted in the termination of his tenancy. I have reached this conclusion based on the following evidence. The Tenant and his legal representative attended on the date that this matter was first set for a hearing. On that date the matter was adjourned on consent, with no future date being set. It was the Tenant’s understanding that the matter was to be adjourned pending the hearing of charges relating to his use of the premises that were scheduled to be heard in the Ontario Court of Justice. It is not clear how the matter was brought back before the Board, but it is clear that the Tenant had no knowledge that the matter was going to be brought back at that time. The Notice was mailed to the Tenant by the Board, in accordance with the Board’s procedure, but there is no positive evidence that the Tenant received the Notice other than the fact that the Notice was not returned to the Board. No effort was made to reach out to the Tenant or his representative at the hearing to see why they did not attend the hearing. While I appreciate that such an inquiry is not a requirement, it is prudent in the face of a situation where the Tenant and his legal representative did appear on the last occasion and the matter was adjourned on a sine die basis with the agreement of the parties. As soon as the Tenant became aware that the hearing had taken place he took steps to seek a rehearing based on the fact that he had not had notice of the hearing. Like the Tenant in King-Winton v. Doverhold Investments Ltd., 2008 CanLII 60708 (Div. Ct.), the Tenant “has never delayed in pursuing [his] remedies.” (para. 3). In the face of this evidence it does not make sense that the Tenant would not have appeared at the hearing if he had known that it was taking place.

[3] As put by the Divisional Court in King-Winton, “Being reasonably able to participate in the proceeding must be interpreted broadly, natural justice requires no less.”

[4] For these reasons the appeal is allowed, the Order terminating the tenancy is set aside and the matter is referred back to a different decision maker for a rehearing on the merits. In view of the circumstances of this case, we would ask that the Board to do what it can to expedite the hearing of this matter.

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