Vincent v. O'Brien, (2015) 364 Nfld. & P.E.I.R. 260 (NLTD(G))

• Judge: Butler, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: March 06, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 364 Nfld. & P.E.I.R. 260 (NLTD(G))

Vincent v. O'Brien (2015), 364 Nfld. & P.E.I.R. 260 (NLTD(G));

    1136 A.P.R. 260

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. MR.046

Coleen S. Vincent (appellant) v. Glenda O'Brien (respondent)

(201501G0039; 2015 NLTD(G) 36)

Indexed As: Vincent v. O'Brien

Newfoundland and Labrador Supreme Court

Trial Division (General)

Butler, J.

March 13, 2015.

Summary:

Vincent rented an apartment from O'Brien. O'Brien served Vincent with a notice requiring vacant possession on the basis of noise complaints. A hearing before the Residential Tenancies Board was set for November 2014. Vincent was 20 to 30 minutes late for the hearing and it proceeded in its entirety in her absence. The Board allowed O'Brien's claim for vacant possession. The Board denied Vincent's request for reconsideration. Vincent appealed.

The Newfoundland and Labrador Supreme Court, Trial Division (General), allowed the appeal and remitted the matter back to the Board for a full hearing.

Administrative Law - Topic 231

The hearing and decision - Right to be heard - Party late for hearing - [See Landlord and Tenant - Topic 7143 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See Landlord and Tenant - Topic 7143 ].

Administrative Law - Topic 2494

Natural justice - Procedure - At hearing - Opportunity to present evidence - [See Landlord and Tenant - Topic 7143 ].

Administrative Law - Topic 2495

Natural justice - Procedure - At hearing - Tribunal proceeding in absence of parties - [See Landlord and Tenant - Topic 7143 ].

Administrative Law - Topic 2664

Natural justice - Denial - Remedies - Substitution of court's decision in place of decision being reviewed - [See Landlord and Tenant - Topic 7143 ].

Administrative Law - Topic 2668

Natural justice - Denial - Remedies - Remittal of award or decision - [See Landlord and Tenant - Topic 7143 ].

Landlord and Tenant - Topic 7143

Regulation - Procedure - Procedural fairness - Requirement of - Vincent rented an apartment from O'Brien - A hearing before the Residential Tenancies Board was set for November 2014 concerning O'Brien's claim for vacant possession on the basis of noise complaints - Vincent was 20 to 30 minutes late for the hearing and it proceeded in its entirety in her absence - The Board was advised that Vincent was waiting outside about five minutes before the matter concluded, but O'Brien refused the adjudicator's offer to start over - O'Brien's claim was allowed - In response to Vincent's request for reconsideration, the Board conducted a paper review in December 2014 and then denied the request on the basis that Vincent had not provided new evidence that was unavailable at the hearing in November - The Newfoundland and Labrador Supreme Court, Trial Division (General), allowed Vincent's appeal - Vincent was denied procedural fairness - She should have been given an opportunity to provide her version of the facts at the original hearing - When that did not happen, she should have been permitted to give evidence during the reconsideration - Given that there was a breach of procedural fairness, the court's only authority was to vacate the original decision and remit the matter to the tribunal for a full hearing - The court could not make an order that the Board might have made.

Landlord and Tenant - Topic 7195

Regulation - Appeals - Remittal to board - [See Landlord and Tenant - Topic 7143 ].

Cases Noticed:

Piros v. Newfoundland Dental Board (1993), 113 Nfld. & P.E.I.R. 266; 353 A.P.R. 266 (Nfld. T.D.), refd to. [para. 22].

Delaney v. Driver's Licence Suspension Review Board (2004), 239 Nfld. & P.E.I.R. 268; 709 A.P.R. 268; 2004 NLSCTD 149, refd to. [para. 23].

Neary v. Portugal Cove-St. Philip's (Town) (2013), 338 Nfld. & P.E.I.R. 122; 1049 A.P.R. 122; 2013 NLCA 47, refd to. [para. 33].

Mobil Oil Canada Ltd. et al. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; 163 N.R. 27; 115 Nfld. & P.E.I.R. 334; 360 A.P.R. 334, refd to. [para. 33].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 36].

Counsel:

Coleen S. Vincent, on her own behalf;

Glenda O'Brien, on her own behalf.

This appeal was heard on February 13 and March 6, 2015, at St. John's, N.L., before Butler, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following reasons for judgment on March 13, 2015.