COURT FILE NO.: 02-DV-737

ONTARIO

DIVISIONAL COURT, SUPERIOR COURT OF JUSTICE

DESMARAIS, FORGET, MARANGER JJ.

B E T W E E N:

ALI SEIFENNASR

Jacqueline Beckles, for the Appellant

Appellant

• and -

CITY OF OTTAWA NON-PROFIT HOUSING CORPORATION

Marc R. Labrosse, for the Respondent

Respondent

HEARD: November 3, 2003

REASONS FOR JUDGMENT

BY THE COURT:

Introduction:

1This is an Appeal from the decision of the Ontario Rental Housing Tribunal (ORHT), dated April 22, 2002, which dismissed the appellant’s request for a review of a rent default order dated January 15, 2002, granted in favor of the Respondent.

Background:

2On October 19, 2002, the landlord, the City of Ottawa Non-Profit Housing Corporation (the Respondent), served a notice of termination to the tenant, Ali Seifennasr. The landlord alleged that the tenant failed to pay his outstanding rent. The tenant’s rent was subsidized rent geared to his income. In order to continue with the subsidy, the tenant was obliged to provide proof of income on an annual basis. The tenancy agreement provides that failure to provide proof of said income in a timely manner could result in a discontinuation of the subsidy. On June 29, 2001, the tenant executed a new lease and provided the income information requested by the City of Ottawa Non-Profit Housing Corporation. Following the execution of the lease, the respondent in this case asked for further supporting documentation in relationship to his income. The tenant failed to provide said information, and during the entire proceedings indicated that he did not receive such letter. As a result, the rent was automatically raised and the tenant failed to pay the appropriate rent.

ORHT Decision:

3On January 15, 2002, Member Goodchild, heard the Application, however only the landlord’s agent attended the hearing. He nonetheless ordered that the tenancy be terminated and that the tenant pay arrears of rent.

4The tenant thereafter requested a review and a stay of the order of January 15, 2002 before Vice-Chair Guénette of the ORHT. On the record, he confirmed that the tenant was not responsible for missing the original hearing. The Vice-Chair then advised the tenant that they would proceed to an in-depth hearing of the matter, however the onus would be on him to demonstrate the impropriety of the order granted on January 15, 2002. He then dismissed the tenant’s application finding that the tenant was self-employed and had failed to provide the proof of income as requested.

The Decision of the Vice-Chair:

5The difficulty with the decision of the Vice-Chair, in our view, is that he failed to appreciate that the tenant never received a hearing on the merits on January 15, 2002. The Appellant was not at that hearing. He was absent because of a misdirection by an employee or employees of the ORHT. He was instructed that he did not need to be present for the hearing, as it would not proceed on the date scheduled. He was told that it was the practice to postpone matters requiring a French adjudicator; nevertheless, the hearing went ahead as scheduled. In his absence the ORHT made a decision against him. This in our view was a Jurisdictional error making the original order invalid.

6Counsel for the respondent in a very able and capable argument tried to convince the Court that the error was remedied in effect by the Vice-Chair when he entertained a hearing de novo.

7However, in our view Vice-Chair Guénette should have examined the appropriateness of the original order. He agreed that the Appellant was absent for reasons beyond his control, but nonetheless, placed the onus squarely on him to convince him that the original order was inappropriate. This resulted in a reversal of the onus and a denial of natural justice. In our view, the appellant clearly had the right to a hearing in the first instance and he had the right to be present. S.192(1) of the Tenant Protection Act, 1997. S.O. 1997, c. 24 provides the following:

192(1) The Tribunal may make an order with respect to any of the following applications without holding a hearing if the application is not disputed.

8In this case, the Application to evict the Appellant was in fact disputed, as is evidenced by the dispute that was filed by the tenant with the ORHT on November 30, 2001. The bottom line in this case is the Appellant regardless of the merits of his defence to the application for eviction had the right to be heard, and to be present at his hearing. Justice in this case was denied.

9The appropriate remedy therefore is that the matter should be returned to the ORHT for a proper hearing de novo, and for the matter to proceed in the language of the appellant’s choice, being the French language.

Costs:

10In our view, although the Appellant was successful, this is an appropriate case for a no costs order. We find that the real difficulty in the case lies with mistaken information originating from staff at the ORHT, and has very little to do with any of the actions taken by the City of Ottawa Non-Profit Housing Corporation. Therefore, there will be a no order as to costs.