) ) CATHERINE MAY Landlord (Appellant) – v. –, 2010 ONSC 6387

CITATION : May v. Cullingham, 2010 ONSC 6387 DIVISIONAL COURT FILE NO.: 507/09 DATE: 20101119 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MOLLOY, SWINTON AND HERMAN JJ. BETWEEN: ) ) CATHERINE MAY Landlord (Appellant) – and – KRISTA CULLINGHAM Tenant (Respondent) )) )) )) )) ))) In Person In Person ) ) ) HEARD at Toronto: November 19, 2010 MOLLOY J. [ 1 ] This is an appeal by a landlord (“Mrs. May”) from an order of the Landlord and Tenant Board (the “Board”) dated July 31, 2009. Mrs.

May sought a review of that decision which was dismissed on September 24, 2009. [ 2 ] An appeal lies to the Divisional Court from decisions of the Board but only on a question of law. The standard of review is correctness. [ 3 ] The Board is required to conduct its hearings in accordance with principles of natural justice and procedural fairness. A failure to do so in and of itself may be grounds for quashing a decision. One of the principles of natural justice is the right to be heard. [ 4 ] In this appeal, there were no errors of law raised.

The central issue in the appeal is whether the Board breached rules of procedural fairness: (

i) by proceeding with the hearing in the absence of the responding party Landlord; and, (ii) by permitting a witness for the tenant to be present while the tenant was testifying. [ 5 ] We are of the view that there was no breach of natural justice or procedural fairness by the Board. Mrs. May had notice of the hearing and was given the opportunity to be present. She did not attend and did not ask for an adjournment. Instead, she sent a letter to the Board stating that her husband, who would be a witness, was ill and she would not be attending.

She attached what she said was an affidavit, although it was not in fact sworn, setting out evidence she asked the Board to take into account. [ 6 ] The Board member did precisely what Mrs. May asked her to do. She proceeded with the hearing in her absence but took into account the written material she had submitted. Mrs. May provided no explanation to the Board as to why she was unable to be present as it appeared it was only her husband who was ill. No further evidence was presented at the review hearing to support her

position that she was unable to attend the original hearing. The review member upheld the decision of the original presiding member. [ 7 ] The Board made no error in proceeding with the hearing in these circumstances. The Board considered all of the evidence and came to a reasoned decision. In some instances, the Board preferred the testimony of the tenant to the unsworn written material of Mrs. May. The Board was entitled to do so. [ 8 ] The Board did not, however, merely accept everything the tenant and her witness said, but rather considered all of the evidence and the weight to be given to it.

Based on that evidence the Board awarded the payment of $1,441.54 to the tenant. [ 9 ] The Board’s decision to allow the witness to be present during the hearing is not an issue that goes to fundamental fairness. This was a matter of discretion by the Board Chair and there is no basis for interfering with it. [ 10 ] We reject the appellant’s submission that there was any bias by the Board. This was a fair hearing. Accordingly, this appeal is dismissed. I have endorsed the Appeal Book, “The Appeal is dismissed for reasons delivered orally today.

Costs to the respondent fixed at $1,331.57 payable forthwith.” MOLLOY J. SWINTON J. HERMAN J. Date of Reasons for Judgment: November 19, 2010 Date of Release: December 1, 2010 CITATION : May v. Cullingham, 2010 ONSC 6387 DIVISIONAL COURT FILE NO.: 507/09 DATE: 20101119 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MOLLOY, SWINTON AND HERMAN JJ. BETWEEN:

CATHERINE MAY Landlord (Appellant) – and – KRISTA CULLINGHAM Tenant (Respondent) ORAL REASONS FOR JUDGMENT MOLLOY J. Date of Reasons for Judgment: November 19, 2010 Date of Release: December 1, 2010