ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, GROUND AND PITT JJ.
B E T W E E N:
712953 ONTARIO LIMITED c/o MEDALLION PROPERTIES INC.
Landlord (Applicant)
(Respondent in Appeal)
- and -
TENANTS OF 545, 555 & 565 SHERBOURNE STREET
per Schedule attached
Tenants (Respondent)
(Appellant in Appeal)
Peter Ruby, for the Respondent
Ian S. Hennessey, for the Tenants
HEARD: October 8, 2004
ferrier J.: (Orally)
1The constitutional issue was not raised below. If it had been the respondent would have been afforded an opportunity to lead evidence on the issue raised including whether s.7 has any application to this case. It is inappropriate to proceed with a constitutional issue without a full evidentiary record.
2Furthermore, the Minister of Justice for Canada was given, we are informed by counsel, one days’ notice which is not in compliance with s.109 of the Courts of Justice Act.
3For these reasons, the constitutional issue is dismissed.
GROUND J.
4The application was dismissed by Member Lee strictly on the basis of the delay on the part of the landlord in filing with the Tribunal confirmation that there had been no decrease in the taxes on the property between 1999 and 2000 and that accordingly, the tenants were not entitled to a decrease in rent as they were erroneously advised by the City.
5From the record before this Court, it appears to us that the delay was occasioned by the delay on the part of the City in providing the confirmation to the landlord, in spite of the landlord’s best efforts to obtain it. It also appears to us that the landlord could not properly have proceeded before the Tribunal without such confirmation in hand.
6In our view, Member Lee erred in dismissing the application based on the delay in the filing of the additional evidence by the landlord and in failing to consider the application on its merits.
7In our view, Member Light was correct in her finding that the ability of the tenants to respond to the application had not been prejudiced by such delay and in proceeding to hear the application on its merits and to grant the relief sought in the application.
8The appeal is dismissed.
FERRIER J.
9For oral reasons delivered this day, the constitutional issue is dismissed, the appeal is dismissed, and the motion to admit fresh evidence is dismissed. Execution of this judgment is stayed for 30 days from today. Costs on a partial indemnity scale fixed at $1,000.00 for the motion for fresh evidence and constitutional issue, plus $6,000.00 for the appeal, totalling $7,000.00 including disbursements and GST. The amount on deposit as security for costs, to be paid out to the respondent and deducted from the said $7,000.00.
___________________________
FERRIER J.
___________________________
GROUND J.
___________________________
PITT J.
Date of Reasons for Judgment: October 8, 2004
Date of Release: October 19, 2004
COURT FILE NO.: 193/04
DATE: 20041008
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, GROUND AND PITT JJ.
B E T W E E N:
712953 ONTARIO LIMITED c/o MEDALLION PROPERTIES INC.
Landlord (Applicant)
(Respondent in Appeal)
- and -
TENANTS OF 545, 555 & 565 SHERBOURNE STREET
per Schedule attached
Tenants (Respondent)
(Appellant in Appeal)
ORAL REASONS FOR JUDGMENT
FERRIER J.
Date of Reasons for Judgment: October 8, 2004
Date of Release: October 19, 2004