COURT FILE NO.: 356/04

DATE: 20050322

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, LANE AND LINHARES De sousa jj.

B E T W E E N:

MARJORIE MCKENZIE

Plaintiff/Appellant

• and -

SUPPORTIVE HOUSING IN PEEL

Defendant/Respondent

In Person

James S. G. Macdonald, for the Respondent

HEARD: March 22, 2005

lane j. (Orally)

1The tenant appeals from the decision of the Ontario Rental Housing Tribunal (Tribunal) granting the application of the respondent landlord to terminate her tenancy and evict her. The basis for the order was the conduct of the appellant in assaulting the spouse of the building superintendent with a pen and causing a wound to her hand or arm. The appellant denies that this occurred, but the Tribunal found that it did and before us the appellant candidly advised that she had been convicted of the same charge in the Ontario Court of Justice. She is presently on probation as a result. The Tribunal also found that she had caused a disturbance by shouting and had substantially interfered with the enjoyment of the premises by others.

2Our jurisdiction to hear this appeal is established by section 196 of the Tenant Protection Act, 1997, S.O. c.24, (the Act) and is confined to questions of law.

3The respondent is a non-profit organization, which provides assisted housing for persons with special needs. The appellant tells us that, in 1998, she was diagnosed with a form of schizophrenia and that this is the reason why she qualified for accommodation in the respondent’s facility. She says that she was interviewed before being accepted as a tenant and that the respondent is fully aware of her situation.

4Counsel for the respondent was not present at the Tribunal hearing and could not advise us if there was any reference to the appellant’s disability at that hearing. Regrettably, once again, the court is faced with an appeal from this Tribunal where there is no transcript available. The copy audio recording made for the appellant was indecipherable and could not be transcribed. It is not therefore possible to know whether the Tribunal was aware of the appellant’s special needs as a person with a disability. What is clear is that the Tribunal did not refer in its reasons to her condition or to any need to consider the relationship of the Act, particularly section 84(1) and the provisions of the Ontario Human Rights Code.

5In Walmer Developments v. Ava Wolch, (2003), 67 O.R. (3d) 246, (which was also a schizophrenia case) this court analyzed the relationship of the Act and the Code, and concluded that landlords are required to accommodate the needs of disabled tenants to the point of undue hardship. Accordingly, the Tribunal, when exercising its discretion under section 84(1) of the Act, is bound to have regard to the landlord’s obligations under the Code. At paragraph 35 of the Wolch case, the court said:

“For these reasons, we are of the view that the ORHT is bound by the legislation to comply with section 17 [of the Code] in full in its decision-making and in particular when exercising its discretion under s.84 as to whether it would be unfair to the landlord not to evict a person suffering from a disability. The ORHT must consider whether any disruption in the enjoyment of other tenants may be sufficiently alleviated by a reasonable accommodation of the disabled tenant without undue hardship to the landlord.”

6If the appellant’s disability was known to the Tribunal, as it should have been, it would be an error of law for the Tribunal to fail to take it into account. In the absence of a transcript, we cannot know this essential fact and we remit the respondent landlord’s application to the Tribunal to hold a fresh hearing before a different member.

LANE J.

LINHARES DE SOUSA J.

O’DRISCOLL J. (Orally) [concurring in the result]

1The Appellant/Tenant (Tenant), under s.196 of the Tenant Protection Act, 1997, S.O. 1997, c.24, appeals to this Court from the Ontario Rental Housing Tribunal’s order of June 17, 2004, terminating the tenancy and ordering the Tenant to move out by June 28, 2004.

2Section 196 of the Act states:

“(1) Any person affected by an order of the Tribunal may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.

(4) If an appeal is brought under this section, the Divisional Court shall hear and determine the appeal, and

(a) affirm, rescind, amend or replace the decision or order; or

(b) remit the matter to the Tribunal with the opinion of the Divisional Court;

(5) The Divisional Court may also make any other order in relation to the matter that it considers proper and may make any order with respect to costs that it considers proper.”

3On this appeal, the Court is left in a very unhappy position:

(i) the Tenant appears in person before us; she also appeared on her own behalf before the Tribunal. Before the Tribunal, the Landlord was represented by an agent. Before us, counsel appears on behalf of the Landlord.

(ii) before us, the Tenant announced that, in 1998, she had been assessed as having a mild form of schizophrenia before she was admitted to unit 1401 – 15 Eva Road, Etobicoke, Ontario, a building operated by the landlord, Supportive Housing in Peel. There is nothing in the written record confirming Ms. McKenzie’s statement.

(iii) in its order of June 17, 2004, the Tribunal found:

“1. The Tenant has willfully caused undue damage to the residential complex by breaking the intercom system. The Landlord submitted an invoice in the amount of $346.25, representing the cost to repair the intercom.

2. The Tenant has created disturbances in the common areas of the residential complex by yelling and by demonstrating a violent temper in the presence of many Tenants and in one instance in the presence of a child. The child has remained frightened whenever visiting his father in the residential complex. Several Tenants wrote letters of complaints.

3. The Superintendent was attacked by the Tenant. Although the Tenant denies this allegation, I am convinced of the attack by a letter from a Tenant who witnessed the attack, the hospital emergency record and the police occurrence report submitted at the hearing. This incident seriously impaired the safety of the Superintendent.

4. The Tenant’s conduct has substantially interfered with the Landlord’s and the other tenants’ reasonable enjoyment of the residential complex.”

4Before us, the Tenant advised that, on May 21, 2004, she was arrested for assaulting the landlord’s spouse, a co-superintendent, and spent the long weekend in custody. On December 17, 2004, she was convicted of assault in the Ontario Court of Justice and sentenced to fifteen (15) days in jail, plus two years probation, plus an order that she have no contact with the superintendent’s wife – the woman whom she had assaulted. Apparently, the Ontario Court Judge did not make an order forbidding Ms. McKenzie from returning to her apartment. This arrest and conviction arises out of the same incident set out in the Tribunal’s order. Before us, the Tenant continues to deny that she assaulted anyone.

5Before us, the Tenant asks the Divisional Court to exercise its discretion under s.84(1) of the Tenant Protection Act, which states 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.

6Unfortunately, this is another appeal from the Tribunal where there is no intelligible tape and/or transcript available. In Nimmo v. Toronto Housing Co. [2002] O.J. No. 3450, the Divisional Court said:

5“There is no transcript of what transpired before the Tribunal because the tapes of the proceedings are unintelligible and inaudible. Ms. Strashin did not pursue this ground of appeal, conceding in the end that it would be possible for this court to determine this matter without the tape. We agree. However, this court is concerned about the absence of a properly transcribed record, something which is becoming too prevalent in appeals and reviews of the decisions of this and other Tribunals. Section 20 of the Statutory Powers Procedure Act requires the Tribunal to compile a record, including a transcript of the oral evidence, if any, the decision of the tribunal and any reasons therefore. Here, there is a transcript, but it is of no use.

6The absence of a proper record can adversely affect not only the appellant’s right to a fully considered appeal and the respondent’s right to a fully considered response but the Court’s ability to provide a fully considered determination. Principles of natural justice may be violated. The Divisional Court has earlier expressed its concerns about such circumstances, in Smolcec v. Longhouse Village (Thunder Bay) Inc., [2001] O.J. No. 875, per LaForme J. We direct that a copy of this endorsement be forwarded to the Ontario Rental Housing Tribunal.

7In the circumstances of this case, however, we are satisfied that the absence of the tapes is not fatal, since the factual underpinning of the order attached is not seriously in dispute.”

7Here, however, I am not prepared to say that the absence of the tapes or a transcript is not fatal. In my view, it is impossible to know, with precision, exactly what took place before the Tribunal on June 17, 2004. Based on the absence of the tape or a transcript, and for that reason alone, I would allow the appeal and remit the matter to the Tribunal to hold a fresh hearing before a different member.

7It should perhaps be noted that this proceeding, before the Divisional Court, as in all proceedings where a litigant is self represented, was recorded.

8With the concurrence of my colleagues, I have endorsed the back of the Appeal Book and Compendium as follows: “This appeal is allowed and the matter is remitted to the Tribunal for a fresh hearing in accordance with the oral reasons of even date given for the majority of the Court (Lane and Linhares de Sousa JJ.) by Lane J. For separate oral reasons, O’Driscoll J. concurs in the result. We have heard submissions as to costs. In all the circumstances of the case, no order as to costs.”

O’DRISCOLL J.

Date of Reasons for Judgment: March 22, 2005

Date of Release: April 15, 2005

COURT FILE NO.: 356/04

DATE: 20050322

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, LANE AND

LINHARES De sousa jj.