COURT FILE NO.: 411/03
DATE: 20041214
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, PITT AND MOLLOY JJ.
IN THE MATTER OF an Appeal of a decision of the Ontario Rental Housing Tribunal Member Cynthia L. Summers, dated May 29, 2003, File No. TNL-41859
APPLICATION UNDER Section 196 of The Tenant Protection Act, 1997, S.O. 1997, c. 24.
B E T W E E N:
TORONTO COMMUNITY HOUSING CORP. a.k.a. TORONTO COMMUNITY HOUSING CORPORATION
Landlord/Applicant
(Respondent in Appeal
- and -
WINSOME GREAVES
Tenant/Appellant
(Appellant in Appeal)
Jim Kandaji for the Landlord/Applicant (Respondent in Appeal)
Kerry K. Gearin for the Tenant/Respondent (Appellant in Appeal)
HEARD: November 18, 2004
Pitt J.:
REASONS FOR JUDGMENT
[1] This is an appeal by the tenant, Winsome Greaves, from a decision of the Ontario Rental Housing Tribunal Member, Cynthia L. Summers, dated May 19, 2003, finding that the tenant had committed an illegal act, namely, assaulting another tenant, and ordering the eviction of the tenant and her four minor children.
A. STANDARD OF REVIEW
[2] Given that the decisions of the Tribunal may be appealed only on a question of law, the standard of review should be correctness. (Dollimore v. Azuria Group Inc., [2002] O.J. No. 4408 (Div. Ct.).)
[3] The Divisional Court has also held that where there is a statutory right of appeal, and particularly where the court is asked to review whether a board is right in its interpretation of a statutory provision, the standard of review must be correctness. See, e.g. Re Feingold and Discipline Committee of College of Optometrists of Ontario (1981), 123 D.L.R. (3d) 667 (Div. Ct.); Dollimore, supra, and Samuel Property Management Ltd. v. Nicholson (2002), 61 O.R. (3d) 470 (C.A.).
[4] Where a decision is on a mixed question of fact and law, such as a question of whether a particular matter falls within a statutory provision, either there is no right of appeal, or, if a right of appeal exists, the standard of review is reasonableness and some deference should be given to the decision of the Tribunal (Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th) 577 (S.C.C.) at 591-96.)
[5] There is also some support for the assertion that when the Tribunal is dealing with a question of law that falls within the Tribunal’s jurisdiction and expertise, particularly the eviction provisions under s. 84, the standard of patent unreasonableness should apply. (Smokec v. Longhouse Village (Thunder Bay) Inc., [2001] O.J. No. 875)
[6] We are of the view that whatever standard is applied, the appeal ought to be allowed for the reasons set out below.
B. PRELIMINARY MATTERS
[7] The hearing took place over a period of three days: February 7, April 24 and May 26, 2003. The parties were represented by counsel. Four witnesses testified for the landlord and three witnesses testified for the tenant. The transcript of evidence was incomplete, but was sufficient to permit us to dispose of the issues.
[8] The tenant requested an adjournment on the first day of the hearing on the ground that the alleged illegal act arose from an altercation that was the subject of pending criminal charges against both tenants. The request for the adjournment was denied. We do not take issue with the Member’s decision to refuse the adjournment given the nature of the allegations against the tenant.
C. THE DECISION OF THE TRIBUNAL
[9] The Tribunal’s Decision is headed “Order under Section 69”. In the first three paragraphs, the Member sets out the background of the matter, identifies the parties and lists the witnesses who testified. No factual findings are made in these paragraphs.
[10] The next paragraph of the decision deals with the preliminary issue of the request for adjournment, and the Member’s decision to deny that request.
[11] Next, under a heading entitled “Section 84 Considerations” the Member wrote as follows:
Section 84 Considerations:
At the conclusion of the hearing the Member reserved the decision. Ms. Gearin requested that should the tenancy be terminated by the Tribunal, that the Tribunal consider postponing the eviction pursuant to section 84 of the Tenant Protection Act because it is counsel’s position that Ms. Greaves acted in self defence when assaulting Ms. Jaffray. She argued that Ms. Greaves’ life and lives of her four children have been “turned upside down” since she has been charged with assault with a weapon. She stated that Ms. Greaves is on social assistance and her four children, age 8, 6, 5 and 1 would have difficulty finding housing if they were evicted from rent geared to income housing. Ms. Greaves stated in regards to the outcome of this housing related hearing, that the outcome was almost more important to Ms. Greaves than the outcome of the criminal charges. Mr. Kandji [sic] stated that he would consent to the eviction being postponed to June 30, 2003 to allow the children to complete their school year, but would oppose any longer postponement because of fear for the safety of others living in the residential complex, given the nature of the application. After considering all of the submissions I have decided to postpone the eviction pursuant to section 84 of the Tenant Protection Act until June 30, 2003, to allow the children to finish their school year. I make this decision as a consideration for the children but do not accept the argument that Ms. Greaves acted in self defence.
[12] The Member’s factual findings with respect to the allegations that the tenant assaulted another tenant are set out in their entirety under a heading entitled “It is determined that:”, as follows:
It is determined that:
The Tenant committed an illegal act in the residential complex on August 27, 2002 by assaulting another tenant of the complex, Ms Jaffray, in the parking lot with a broken beer bottle. The Tenant’s actions resulted in Ms Jaffray suffering multiple injuries and having to be moved by way of emergency transfer to another housing complex to ensure the safety of her and her children.
Given the personal circumstances of the Tenant, specifically her four young children, I find that it would not be unfair to postpone the eviction to June 30, 2003, pursuant to section 84 of the Tenant Protection Act.
[13] The final portion of the Decision consists of five sub-paragraphs headed “It is ordered that:” setting out the actual terms of the including termination of the tenancy and compensation.
D. ANALYSIS
(i) Finding of Illegal Act by the Tenant
[14] There are no reasons given for the finding that the tenant committed an illegal act in the face of a dispute that obviously required credibility findings, as only two eye witnesses (the parties to the altercation) testified. In fact, the decision is devoid of reasons. It merely recites the positions of the parties. We are of the view that such a decision given without reasons for believing one of the two protagonists in an altercation cannot stand. See Megens v. Ontario Racing Commission (2003), 64 O.R. (3d) 142 (Div. Ct).
[15] It would appear, as well, that the Member did not accept Ms Greaves’ evidence that she acted in self defence: see the last sentence of her reasons with respect to s. 84 of the TPA quoted at para 11 above. We have no way of determining the basis upon which the Member came to that conclusion. In particular, we have no way of knowing whether the correct legal test and burden of proof was applied by the Member. Again the decision of this Court in Megens v. Ontario Racing Commission (and the cases referred to therein) is dispositive, such that the decision of the Member cannot stand.
[16] Counsel for the landlord argues that we ought not to decide this case based on an absence of reasons from the tribunal because the tenant failed to request such reasons. We do not agree. Rule 23.1 of the Ontario Rental Housing Tribunal Rules of Practice and Procedure provides:
23.1 If a party wished the Member to issue written reasons for the order, the party must make the request:
(a) orally at the hearing; or
(b) in writing within 30 days after the order is issued.
[17] The Tribunal’s decision in this case was five pages long. As noted above, the decision culminates with the heading “It is ordered that:” followed by five numbered subparagraphs setting out the Member’s order. In our view, it was reasonable for the tenant to conclude, as she did, that these five points are the orders of the Member and that the preceding two pages of the decision are the Member’s reasons for the orders made. Section 23.1 is appropriately invoked where no reasons whatsoever are provided, but merely an order. It is not appropriately invoked in a situation in which a Member has given some form of written reasons, but which the tenant considers to be deficient. We do not fault the tenant in this situation for failing to request more fulsome reasons in writing and we do not consider her failure to do so to be a barrier to her raising the inadequacy of the reasons as a ground of appeal.
(ii) Section 84 Considerations
[18] The relevant portion of s.84 of the Tenant Protection Act provides as follows:
- (1) Upon an application for an order evicting a tenant or subtenant, the Tribunal may, despite any other provision of this Act or the tenancy agreement,
(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or
(b) order that the enforcement of the order of eviction be postponed for a period of time.
[19] It is evident that notwithstanding the above-noted paragraph of the Member’s decision which is headed “Section 84 Consideration”, there is no analysis of s. 84 contained in that paragraph. The paragraph seems predicated on the assumption that the only consideration required in a s. 84 analysis is the need for children to complete the school year.
[20] It would appear that the Member failed to direct her mind to the fact that there had never been any problem with Ms Greaves before, that she did not have a criminal record and that she had no history of violence. Even if the Member accepted the evidence of other tenant involved in the altercation (Ms Jaffray) as to this one incident and rejected the evidence of Ms Greaves as to what actually happened, there was nothing in these circumstances to indicate any likely danger from Ms Greaves in the future. This is particularly the case given the fact that Ms Jaffray had already been moved to another housing complex.
[21] The Member appears to have accepted that the landlord moved Ms Jaffray to another complex because it was necessary for the safety of her and her children. However, the reasons are silent on the undisputed fact that the sole basis for the landlord’s decision to evict was the laying of the criminal charge against Ms Greaves and that the landlord had done no independent investigation of the incident. There is also no mention in the reasons that the police officer, who laid the charge against the tenant, refused the request of Ms Greaves to lay an information against the other tenant involved in the altercation, with the resulting need for Ms Greaves to appear before a justice of the peace to lay the information. Those charges were laid by Ms Greaves, and were still pending at the time of the hearing before the Member, another factor which the Member would not appear to have taken into account.
[22] We find that the Member failed to properly consider whether, notwithstanding her factual determinations with respect to this particular incident, it would be unfair to the landlord to continue Ms Greaves’ tenancy. We are further of the view that the absence of a s. 84 analysis in these circumstances constitutes legal error, which in and of itself would be sufficient to quash the decision.
E. DISPOSITION
[23] The appeal is granted and the landlord’s application is dismissed. In deciding not to return the matter for another hearing, we have taken into consideration the following:
(a) The financial circumstances of the tenant and especially her responsibility for four minor children.
(b) The decision of the landlord to transfer the other tenant to another apartment in a different area.
(c) The tenant’s success in the criminal proceeding.
(d) The tenant’s history of non-violence.
F. COSTS
[24] Subject to any agreement between the parties, brief written submissions on costs are to be made within 20 days of the release of these reasons.
Lane J.
Pitt J.
Molloy J.
Released:
COURT FILE NO.: 411/03
DATE: 20041214
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, PITT AND MOLLOY JJ.
IN THE MATTER OF an Appeal of a decision of the Ontario Rental Housing Tribunal Member Cynthia L. Summers, dated May 29, 2003, File No. TNL-41859
APPLICATION UNDER Section 196 of The Tenant Protection Act, 1997, S.O. 1997, c. 24.
B E T W E E N:
TORONTO COMMUNITY HOUSING CORP. a.k.a. TORONTO COMMUNITY HOUSING CORPORATION
Landlord/Applicant
(Respondent in Appeal
- and -
WINSOME GREAVES
Tenant/Appellant
(Appellant in Appeal)
REASONS FOR JUDGMENT
Pitt J.
Released: December 14, 2004