) ) Q RES IV OPERATING GP INC. ) ) Martin P. Zarnett , for the Appellant (Landlord) ) Appellant (Landlord) ) ) – v. –, 2017 ONSC 5541

CITATION : Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541 DIVISIONAL COURT FILE NO.: 060/17 LTB NO.: TNT-86357-16RV DATE: 20170918 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SACHS, SPIES and D. FITZPATRICK JJ. BETWEEN: ) ) Q RES IV OPERATING GP INC. ) ) Martin P.

Zarnett , for the Appellant (Landlord) ) Appellant (Landlord) ) ) – and – ) ) LARYSA BEREZOVS’KA ) Larysa Berezovs’ka, acting in person ) Respondent (Tenant) ) ) ) HEARD at Toronto: September 18, 2017 SACHS J. (Orally) [ 1 ] This is an appeal from the decision of the Landlord and Tenant Board (the “Board”) dated January 26, 2017 in which the Board denied the appellant landlord’s request to review an order of the Board issued on October 31, 2016. [ 2 ] The Order of October 31, 2016 was issued after a hearing where the tenant appeared and the landlord did not.

At the end of the hearing, the Board found that the tenant was entitled to a rent abatement because of the landlord’s persistent failure to resolve a noise issue that the Board found had interfered with the tenant’s reasonable enjoyment of the rental unit. [ 3 ] The landlord sought to review the Board’s rent abatement order on the basis of its allegation that it had not received either the Notice of Hearing for the October 31, 2016 hearing or the Board’s Order made on that date.

The landlord submitted that the proceeding only came to its attention when the tenant told it in November, 2017 that she was paying less rent because of the abatement order. [ 4 ] After hearing the evidence of the landlord’s witness that the landlord did not receive the Notice of Hearing or the Order made on October 31, 2016, the Review Board decided that it was not satisfied that this was in fact the case and that the evidence was more consistent with a lack of diligence on the part of the landlord’s head office staff.

The Review Board’s key findings are set out at paras. 4 and 5 of its decision which read as follows: 4 . It is not disputed that the Landlord uses the address of its corporate head office as the address for service of notices and documents. Matters for litigation are then referred to its legal counsel or paralegal. The Board’s file reveals that the Notice of Hearing was mailed to the Landlord’s corporate address on October 4, 2016. A mailed document is deemed to be received 5 days later (subsection 191(2) of the Residential Tenancies Act , 2006 (the “Act”).

The Notice of Hearing was not returned to the Board by Canada Post. Likewise, the Board’s order was mailed to the same corporate address on October 31, 2016, and was not returned. 5. JN is an itinerant manager of the Landlord’s residential complexes. She testified that after she found out about the order from staff at the Tenant’s residential complex she contacted the corporate head office and was informed that they did not receive the Notice of Hearing or the order. It is highly unlikely that both documents, sent to the correct address, went astray in the postal system.

The evidence is more consistent with lack of diligence on the part of the Landlord’s head office staff. No one from the head office was called as a witness. Under the circumstances, the Landlord is not entitled to have the matter re-heard. [ 5 ] The landlord seeks to appeal the Review Board’s decision before us. It does so in recognition of the fact that this Court’s jurisdiction on an appeal from the Board is limited to questions of law ( Residential Tenancies Act , 2006 s. 210(1)). [ 6 ] The landlord submits that where a Board or Tribunal denies a party the opportunity to be heard that is an error of law.

In this case, according to the landlord, that is precisely what happened. [ 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. [ 13 ] I have endorsed the back of the Appeal Book and Compendium as follows: “This appeal is dismissed for reasons given orally by Sachs J. In view of the fact that the Tenant filed no material and did not seek to make submissions there will be no order to costs.” ___________________________ SACHS J.

I agree ___________________________ SPIES J. I agree ___________________________ D. FITZPATRICK J. Date of Reasons for Judgment: September 18, 2017 Date of Release: September 21, 2017 CITATION : Q Res IV Operating GP Inc. v. Berezovs’ka, 2017 ONSC 5541 DIVISIONAL COURT FILE NO.: 060/17 LTB NO.: TNT-86357-16RV DATE: 20170918 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SACHS, SPIES and D. FITZPATRICK JJ. BETWEEN: Q RES IV OPERATING GP INC. Appellant (Landlord) – and – LARYSA BEREZOVS’KA Respondent (Tenant) ORAL REASONS FOR JUDGMENT SACHS J. Date of Reasons for Judgment: September 18, 2017 Date of Release: September 21, 2017