COURT FILE NO.: 100/04

DATE: 20050929

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

ASTON S.J., GREER AND SWINTON JJ.

B E T W E E N:

ELISABETH COLLETT

Tenant

Respondent

• and -

DAVID PIASECKI

Landlord

Appellant

Lisa Cirillo, for the Tenant/Respondent

L. Paul Shenton, agent for Joseph Gouveia, for the Landlord/ Appellant

HEARD at Toronto: September 29, 2005

swinton J.: (Orally)

1A right of appeal from a decision of the Ontario Rental Housing Tribunal applies to the Divisional Court on a question of law, pursuant to s.196(1) of the Tenant Protection Act.

2The appellant/landlord argues that he is deprived of his right to appeal and denied natural justice because there were no recordings of the first day of hearing and part of the second day of hearing before the Tribunal. Essentially, he argues that he cannot show inconsistencies in the testimony of witnesses, rulings on evidence or evidence that was ignored.

3Section 20 of the Statutory Powers Procedure Act requires a tribunal to compile a “record of proceedings”, which includes the transcripts, if any, of the oral evidence given at the hearing. Rule 21(1) of the Ontario Rental Housing Tribunal’s rules states that most hearings will be recorded. However, the commentary notes that there are no guarantees of the existence or quality of a recording.

4This Court has observed on a number of occasions that it is concerned about the lack of adequate recordings at the Tribunal. Nevertheless, the appellant cannot succeed on this ground of appeal unless he satisfies the Court that there is a serious possibility that the lack of a recording deprives the appellant of demonstrating a ground of appeal. See Smolcec v. Longhouse Village (Thunder Bay) Inc., [2001] O.J. No. 875 (Div. Ct.) at par. 25.

5The appellant has not persuaded us that this Court is unable to properly dispose of this appeal on the record before it, which includes the detailed findings of fact and reasons of the Tribunal. In this case the Tribunal made a finding that the landlord illegally entered the rental unit and rented it without first notifying the tenant of a new tenancy and compensating the tenant for that part of the December rent owing to her. The facts that are not controversial are that he rented the premises without telling the tenant and did not offer to compensate her. Given those facts, the Tribunal made no error in finding an illegal entry.

6The Tribunal also found that there was substantial interference with the reasonable enjoyment of the premises over the course of the tenancy, given the effort to micromanage the premises and the unannounced and frequent visits to the house. Again, there is evidence on which the Tribunal could reasonably reach that decision.

7In our view, the appellant has failed to demonstrate that the Tribunal made any error of law. Therefore, the appeal is dismissed.

ASTON S.J.

8I have endorsed the appeal book: “This appeal is dismissed for oral reasons given. Appellant to pay costs fixed at $1,000, plus disbursements, plus GST if applicable.”

ASTON S.J.

GREER J.

SWINTON J.

Date of Reasons for Judgment: September 29, 2005

Date of Release: October 4, 2005

COURT FILE NO.: 100/04

DATE: 20050929

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT