COURT FILE NO.: 690/01

DATE: 20030422

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LANE, THEN AND LANG JJ.

B E T W E E N:

SAM SCHAFFRAN Landlord/Respondent (Appellant)

• and -

KAHTAN S. ALSEAIDY Tenant/Applicant (Respondent)

Counsel: David S. Strashin, for the Landlord (Appellant) No One Appearing

HEARD: April 22, 2003

Oral Reasons for Judgment

LANG J.: (Orally)

1The appellant appeals the Member's order of September 19, 2001. The tenant did not appear.

2On this appeal, the appellant relied only on the grounds, set out in paragraphs 12 to 16 of the notice of appeal, alleging that the monetary amounts granted were awarded in the absence of supportive evidence, in the absence of a fair hearing, and without jurisdiction.

3These issues should be reviewed with the benefit of a transcript of the hearing. In October 2001, counsel for the appellant certified that a transcript was required. In July 2002, the same counsel certified that a transcript was not required. Where the grounds of appeal contain submissions that the decision lacks an evidentiary foundation, a transcript is clearly critical.

4Appellant's counsel tells us that tapes of hearings are only retained by the tribunal for a period of one year and, hence, are no longer available. It was the appellant's decision not to order the tapes, thereby depriving this Court of the foundation needed to review the Member's decision. In those circumstances we are unable to review the decision insofar as it is dependent upon the evidentiary record. This is so with respect to the increased rent award to the tenant, the tenant's moving costs, and the costs of his possessions.

5The $1,000 fine does not entirely depend upon the evidentiary record. It is a fine, according to the tribunal guidelines, essentially to deter landlords from malicious conduct. In the absence of a transcript, we are not prepared to find that the Member lacked grounds to make a finding of malice. The guidelines suggest a range of $250 to $1,500 for a first deterrence order against a landlord. The $1,000 fine was within that range.

6For these reasons, we dismiss the appeal. As the respondent/tenant did not file material or appear today, there will be no order as to costs.

LANE J.

7The appeal book will read: "This appeal is dismissed for reasons given in Court by Madam Justice Lang. There will be no order as to costs."

Date of Reasons for Judgment: April 22, 2003

Date of Release: April 29, 2003

COURT FILE NO.: 690/01

DATE: 20030422

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

LANE, THEN AND LANG JJ.

B E T W E E N:

SAM SCHAFFRAN Landlord/Respondent (Appellant)

• and -

KAHTAN S. ALSEAIDY Tenant/Applicant (Respondent)