COURT FILE NO.: 516/02

DATE: 20030909

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM A.C.J., DUNNET AND COO JJ.

B E T W E E N:

SAVANNAH NESHA

Tenant (Appellant)

• and -

SVITLANA BEZRUKOVA AND ELENA SIZRANOV

Landlords (Respondents)

M. Kate Stephenson, for Clinic Resource Office Legal Aid Ontario

Mary Ellen McIntyre, for Downsview Community Legal Services

No One Appearing for the Respondents

HEARD: September 9, 2003

1This is an appeal under s.196 of the Tenant Protection Act from a decision of the Ontario Rental Housing Tribunal that the appellant’s claim against the landlord/respondents for damages was res judicata.

2The Tribunal has sought to play no part in this appeal. The landlords do not appear and we have only the unopposed submissions of counsel for the appellant.

3This is a matter with a complicated history. There were proceedings before the Ontario Rental Housing Tribunal between the landlords and the tenant, as a result of which the tenant was ordered to leave the premises on the basis that one of the landlords in good faith required them for personal use. The order was postponed for a considerable length of time to give the tenant, and I gather her son, full opportunity to find new quarters.

4With respect to the tenant’s claim against the landlords for abatement of rent by reason of fundamental breach of the landlord’s obligations with respect to repair, the provision of heat and deprivation of storage space, a significant monetary order was made. The tenant also claimed damages from the landlords for breach of obligation in regard to stored possessions that have now gone missing. The Tribunal member decided that he had no jurisdiction to award such damages under the wording of s.35(2) as it then read, which did not include the language now found in s.35(1)(a.1), despite the general language in s.35(1)(e). It should be noted that this interpretation was one of two that was at the time being applied by different Tribunal members to the section and that this Court later decided that there was jurisdiction under the section as it then existed to award damages to a tenant under the existing legislative provisions before the clarifying amendment already referred to.

5The Tribunal member went on to say that he could not even award damages under s.35(2) on the basis of landlord misconduct under s.31(1)(8)(10) since the tenant left the premises pursuant to a Tribunal order and not the notice by the landlords. There was no such claim asserted by the tenant at that time. The tenant commenced a fresh application before the Tribunal after the amendment referred to, relying on the same contentions and now specifically relying on the misconduct of the landlord with respect to personal use to which the Tribunal had referred, albeit obiter, in the original decision on the general point.

6The Tribunal, in an original decision confirmed on re-argument, determined that res judicata applied and there was no foundation for the argument that the amendment was not improperly sought to be interpreted retroactively. Those are the only two inter-related issues that are the subject of this appeal. They are matters of law, so no jurisdictional argument has any relevance here on the basis of s.196(1).

7On the basis of the uncontested submissions received, the ruling made below founded on res judicata was made in error so far as the applicable law is concerned. Even were that not so, it is our view that the rigorous application of the doctrine would be very unfair given the complex and unsatisfactory state of the issues of jurisdiction in regard to damages at the material time. The right course here is to return the matter to the Tribunal with direction that it hear the application and the claim for damages on the merits, dealing with jurisdiction on the basis of the statutory provisions as they now stand.

8In our view, given the issues involved and the uncertainty in the law, this is not a case for costs.

CUNNINGHAM A.C. J.

DUNNET J.

COO J.

Date of Reasons for Judgment: September 9, 2003

Date of Release: September 25, 2003

COURT FILE NO.: 516/02

DATE: 20030909

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT