COCO HOTH APPELLANT - v. -, 2023 SKKB 231

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 231 Date: 2023-10-31 Docket: KBG-SA-01206-2023 Judicial Centre: Saskatoon IN THE MATTER OF S. 72(1) OF THE RESIDENTIAL TENANCIES ACT, 2006 BETWEEN: COCO HOTH APPELLANT - and - BARBARA MYERS and MILES MYERS RESPONDENTS - and - DIRECTOR OF THE OFFICE OF RESIDENTIAL TENANCIES RESPONDENT Counsel: Thomas M. Baldry for the appellant Barbara Myers and Miles Myers appearing on their own behalf ___________________________________________________________________________ JUDGMENT ON APPEAL BARDAI J. October 31, 2023 ___________________________________________________________________________

Introduction [ 1 ] This matter concerns an appeal of a residential tenancies’ decision (File #233663 dated October 6, 2023) [ Decision ] in which the Hearing Officer granted possession of a rental unit to the landlords, Barbara Myers and Miles Myers, collectively [Landlords]. The Tenant, Coco Hoth [Ms. Hoth], appeals the Decision on the basis that: (

a) the Hearing Officer failed to apply the correct legal test pursuant to section 68(2) (

b) of The Residential Tenancies Act, 2006 , SS 2006, c R-22.0001 [ Act ]; (

b) failed to provide sufficient reasons; (

c) denied procedural fairness when the Tenant said they could not access material filed by the Landlords prior to the hearing and denied the Tenant the ability to cross-examine the Landlords; and (

d) failed to apply the correct legal test under section 70(6) of the Act . Standard of Review [ 2 ] The appeal is brought pursuant to section 72(1) of the Act , which provides as follows: 72

(1) Subject to subsections (1.1) and (1.3), any person who is aggrieved by a decision or order of a hearing officer or the director, whether or not the decision or order is made without notice, may appeal the decision or order on a question of law or of jurisdiction to the Court of Queen’s Bench within 30 days after the date on which the decision or order is signed and dated by a hearing officer. [Emphasis added] [ 3 ] In Lansdowne Equity Ventures Ltd. v Cove Communities Inc., 2020 SKQB 113 [ Lansdowne ] , Elson J. noted at para. 30: [30] … In s. 72(1) of the RTA , the Legislature has expressly limited the scope of an appeal to “questions of law or jurisdiction”.

As such, questions of fact or questions of mixed fact and law are beyond this Court’s jurisdiction to review. In this respect, it is not simply a question of greater deference than that applied to a question of law. Even if a hearing officer makes a palpable and overriding error in a finding of fact, this Court cannot intervene unless the error of fact takes on the quality of an error of law. … [ 4 ] A review under

section 72 is not a rehearing. In this type of appeal, the role of the Court is limited, and deference is to be shown to the findings of fact made by a hearing officer. Further, as noted by the Court in Starrpass Properties Inc. v Wolf, 2012 SKQB 243 , 398 Sask R 236, appeals brought pursuant to section 72(1) of the Act are appeals on the record and so affidavit evidence is not permitted except in very limited circumstances. In other words, an affidavit seeking to supplement the information put before the hearing officer or relitigate the matter is not appropriate.

See Lansdowne at para 35 . [ 5 ] In this case, a lengthy affidavit has been filed by Ms. Hoth. Much of that affidavit seeks to reargue factual matters before the Hearing Officer. Frankly, this appeal does not turn on any matters to which Ms. Hoth deposes in her affidavit, in any event. By the same token, facts sought to be introduced by the Landlords by way of argument cannot be considered. Decision of the Hearing Officer [ 6 ] The Hearing Officer rendered a very short Decision in which he details a dispute occurring September 10, 2023, between the Tenant, Ms.

Hoth, and another tenant “Andrew”, concerning parking at the building. Ms. Hoth was apparently upset because Andrew had parked too close to her vehicle, though she was still easily able to move her car as there was no one parked behind her on the street. Ms. Hoth went to Andrew’s unit to confront him about the manner in which he had parked. Andrew, for his part, refused to open the door when Ms. Hoth came knocking. Ms. Hoth banged on the door for an extended period. The Hearing Officer described the banging on the door as violent and an “assault” on the door.

The commotion caused by the banging was sufficiently serious so as to attract the attention of others in the building. When one of the Landlords, Mr. Myers, came to see what was going on, Ms. Hoth told Mr. Myers to “fuck off” and stay out of the matter. [ 7 ] Ms. Hoth further went on to tell another tenant, Mr.

Bolan, that the Landlords are “fucking racists”. [ 8 ] The Hearing Officer notes in his Decision that “…one tenant even left the building specifically to get away from the uncomfortable environment that currently fills the building.” It is not clear from the Decision whether this other tenant left specifically because of Ms. Hoth’s conduct. [ 9 ] At paragraphs 11-13, the Hearing Officer found: [11] I am not saying that the landlords and other tenants have necessarily treated Mr. Hoth fairly either. Having read the decision in 2023 SKORT 22133 , I can understand why Ms.

Hoth might be feeling unwelcome in the building, but that situation will not be corrected by angrily confronting the landlords and other tenants. [12] Whatever the history, Ms. Hoth’s actions on the 10 th of September are inexcusable, and I accept that this is only the climax of an already worsening situation. Ms. Hoth’s language towards the landlord, who is tasked with protecting the peace in the building, is totally unacceptable. Further, undermining the landlords by insulting them to other tenants will in no way help. [13] However Ms.

Hoth might try to justify it, her actions have adversely affected the quiet enjoyment of the residential property, which is grounds to end a tenancy under s. 68(2) (a)(iv)(B), and the landlords have ended that tenancy.

Are the Reasons Sufficient? [10] In my view, I need only deal with the issue of sufficiency of reasons to determine this matter. [11] A

summary of the law in respect of the sufficiency of reasons was given by the Supreme Court of Canada in R vR.E.M., 2008 SCC 51 at paras 16, 17 and 25, [2008] 3 SCR 3: [16] It follows that courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence,the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard [2002 SCC 26,[2002] 1 SCR 869], at paras. 46 and 50; R. v.

Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 524). [17] These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to showhow the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. Thedecision of the Ontario Court of Appeal in Morrissey predates the decision of this Court establishing a duty to give reasons in Sheppard.But the description in Morrissey of the object of a trial judge’s reasons is apt.

Doherty J.A. in Morrissey, at p. 525, puts it this way: “Ingiving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made thatdecision” (emphasis added). What is required is a logical connection between the “what” – the verdict – and the “why” – the basis forthe verdict.

The foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissionsof counsel and the history of how the trial unfolded. … [25] The functional approach advocated in Sheppard suggests that what is required are reasons sufficient to perform the functionsreasons serve – to inform the parties of the basis of the verdict, to provide public accountability and to permit meaningful appeal. Thefunctional approach does not require more than will accomplish these objectives.

Rather, reasons will be inadequate only where theirobjectives are not attained; otherwise, an appeal does not lie on the ground of insufficiency of reasons. This principle from Sheppard wasreiterated thus in R. v. Braich, [2002] 1 S.C.R. 903, 2002 SCC 27, at para. 31: The general principle affirmed in Sheppard is that “the effort to establish the absence or inadequacy of reasons as a freestanding groundof appeal should be rejected. A more contextual approach is required.

The appellant must show not only that there is a deficiency in thereasons, but that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case”(para. 33).

The test, in other words, is whether the reasons adequately perform the function for which they are required, namely to allowthe appeal court to review the correctness of the trial decision. [Emphasis in original.] [Emphasis in para. 25 added] [12] The reasons of a hearing officer need not be perfect, but they do need to be sufficient to allow for appellatereview. “Reasons that ‘simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion’ will rarelyassist a reviewing court in understanding the rationale underlying a decision and ‘are no substitute for statements of fact, analysis,inference and judgment.’” See: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [2019] 4 SCR 653. [13] As Danyliuk J. put it in Olson v Hergott, 2021 SKQB 11 at para 17 in the context of a decision of a hearingofficer: [17] The first issue is the “leap” from a brief recital of the facts to the conclusion or decision.

Paragraph 8 of the Hearing Officer’sreasons is particularly problematic. The reasons do not address what the evidence was, or what was relied upon (or, for that matter,rejected) by the Hearing Officer. The reasons do not indicate this same information regarding documents or other exhibits. Indeed, thisCourt received the file from the Office of Residential Tenancies [ORT] and it is entirely unclear what the evidence or documents were atthe original hearing. Absolutely nothing has been marked as an exhibit. It is impossible to tell which of these documents had meaning forthe Hearing Officer, and which did not.

In large measure this is because there is no definition of the issues in the hearing. [14] In this case, the Hearing Officer in his Decision makes no mention of the central allegation advanced by theLandlords in their application to the Office of Residential Tenancies being that: The tenant has threatened “to bring a group of fuckening Indians to kick his ass” Audio and Video included. [15] The complaint of the Landlords further alleges harassment of the Landlords and harassment of other tenants,including threats to other tenants resulting in police complaints.

The Landlords says that other tenants are fearful of Ms. Hoff. [16] The Decision does not say whether video evidence was reviewed and/or relied upon. [17] From a review of the Decision, it is not clear what test the Hearing Officer applied in order to conclude thatrelief under

section 68 of the Act was warranted. It is not apparent from reading the Decision what the Hearing Officer found in relationto the key complaints set out in the Landlords’ notice and whether such complaints or findings figured in the analysis. [18] The law as it relates to the application of

section 68 of the Act is set out in an unreported decision, Wieder vSaskatoon Housing Coalition Inc. and the Office of Residential Tenancies (28 September 2020) Saskatoon, QBG-SA-00906-2020 (SaskQB) at paras 14-15: [14] In Leno Investments Inc. v E.L. 2017 SKORT 7, the hearing officer explained the difference between an application forpossession under s. 68 and an application under s. 58. At para. 4 the hearing officer notes:

[4] Under

section 68 an order for possession may be granted if grounds are proven and if it would be unreasonable to require the landlord to end the tenancy under

section 58 of the Act .

Section 58 requires in most cases a calendar month’s written notice, whereas under

section 68, no such notice is required. Orders pursuant to

section 68 are typically granted only in the more serious cases of tenant misconduct… [15]

Section 68 provides: 68

(1) Notwithstanding

section 55, a landlord may apply for an order of possession pursuant to

section 70 and for an order to end the tenancy on a date that is earlier than the tenancy would end if notice to end the tenancy were given pursuant to

section 58 .

(2) A hearing officer may make an order specifying the date on which the tenancy ends and the effective date of the order of possession if the hearing officer is satisfied that: (

a) the tenant or a person permitted on the residential property by the tenant has done any of the following: (

i) significantly interfered with or unreasonably disturbed another tenant or another occupant of the residential property, the landlord or any persons in any adjacent property; (ii) seriously jeopardized the health or safety or a lawful right or interest of another tenant or another occupant of the residential property, the landlord or any persons in any adjacent property; (iii) put the landlord’s property at significant risk; (iv) engaged in a noxious, offensive or illegal activity that: (

A) has caused or is likely to cause damage to the landlord’s property; (

B) has adversely affected or is likely to adversely affect the quiet enjoyment, security, safety or physical well-being of another tenant or another occupant of the residential property, the landlord or any persons in any adjacent property; or (

C) has jeopardized or is likely to jeopardize a lawful right or interest of another tenant or another occupant of the residential property, the landlord or any persons in any adjacent property; (

v) caused extraordinary damage to the residential property; and (

b) it would be unreasonable to wait for a notice to end the tenancy pursuant to

section 58 to take effect.

(3) If an order is made for the purposes of this section, the landlord is not required to give the tenant any notice to end the tenancy.

(4) If an application for an order of possession pursuant to this

section is denied, the hearing officer may: (

a) make an order ending the tenancy as if the landlord had given notice to end the tenancy pursuant to

section 58; and (

b) make any other order that the hearing officer could make as if the notice mentioned in clause (

a) were a notice to end the tenancy given pursuant to

section 58. The

section has been invoked where: (

i) there are issues of assault or other criminality, as was the case in Boardwalk REIT Properties Holdings Ltd. v E.T., 2016 SKORT 230 and L.O. v R.A. 2016 SKORT 144 ; (ii) where a tenant, after multiple warnings, was going into common areas naked, as was the case in Progressive Property Management Ltd. v R.R., 2016 SKORT 143 at para. 10 ; (iii) where there are serious safety concerns to others, like a tenant who smokes while at the same time using an oxygen tank, as was the case in Regina Housing Authority v R.M. , 2016 SKORT 140 . [ 19 ] In order to receive relief under section 68(2) , there is a two-stage inquiry.

At the first stage, the Hearing Officer must be satisfied that Ms. Hoff has either: (

a) interfered unreasonably with or disturbed another tenant, the Landlords or neighbours; (

b) seriously jeopardized the health of others; (

c) put the Landlords’ property at risk; (

d) caused extraordinary damage to the residential property; or (

e) engaged in noxious, offensive or illegal activity. [ 20 ] If the first stage is met, the question is whether it would be unreasonable to wait for notice to end the tenancy pursuant to

section 58 to take effect. See also Kay and Clarke v Yelland (23 February 2023) Saskatoon, KBG-SA-00109-2023 (Sask KB). [ 21 ] Counsel for Ms. Hoth acknowledges that the uncontroverted evidence respecting the behaviour of his client

describes an incident where Ms. Hoth did not behave appropriately. The Hearing Officer describes Ms. Hoth’s behaviour on September 10, 2023 as “inexcusable”. On this, I am in complete agreement. However, that is not the question I must determine. The question is whether the Decision provides adequate reasons to demonstrate that the requirements of s. 68(2) have been met. Certainly, if the Hearing Officer had found that Ms. Hoff made threats against the Landlords and/or tenants in the building, her eviction under section 68(2) would be justified. However, no such finding of fact was made by the Hearing Officer.

The closest the Hearing Officer comes is at paragraph 12 where he describes “Ms. Hoth’s language towards the landlord, who is tasked with protecting the peace in the building, is totally unacceptable.” Is this a reference to the profanity? Is this a reference to a threat? Is it a reference to the assertion of racism? The Court is unable to tell based on the decision. [ 22 ] It is not clear from the Decision what test the Hearing Officer applied when assessing the evidence, whose evidence he believed or why he reached the conclusion he did. Was the conclusion on the basis of the September 10, 2023 incident?

Was it on the basis of a pattern of conduct and, if so, what is the specific pattern of conduct that led to the Decision ? [ 23 ] The conclusion of the Hearing Officer may well be appropriate in the sense that the conclusion may not give rise to an error of law or of jurisdiction but without knowing the test that was applied and the factual findings upon which that test was met, the conclusion cannot be justified by the reasons given. Failing to provide adequate reasons is an error of law. [ 24 ] In the end result, I am ordering a new hearing before a new hearing officer.

The Court has considerable sympathy for the tenants who appeared together with the Landlords on this appeal. It is evident that Ms. Hoth’s behaviour has been less than neighbourly, but the question is whether the conditions of section 68(2) are met and whether the reasons of the Hearing Officer are adequate. In this case, the reasons are just not adequate, and so I have no choice but to order a new hearing. ________________________________ J. N. BARDAI