Court File Number 05-DV-001114

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

BETWEEN:

SUE MARCELLOS AND SANTOS ZELAYA

Appellant(s)

-and-

WOODBRIDGE MANAGEMENT LTD.

Respondent(s)

REASONS FOR DECISION

DELIVERED ORALLY BY

ASSOCIATE CHIEF JUSTICE D. CUNNINGHAM

THE HONOURABLE MR. JUSTICE A. CUSINATO

THE HONOURABLE MR. JUSTICE R. REILLY

on the 6^th day of April, 2006, at OTTAWA

APPEARANCES:

Mr. R. Lang Counsel for the Appellant

Ms. J. Carter Counsel for the Respondent

(i)

Table of Contents

Cr- Re-

WITNESSES In-Chief Exam. Exam.

NO WITNESSES CALLED

Put in on page

Reasons for Decision 1

Date transcript ordered: May 1^st, 2006_

Date transcript completed: May 6^th, 2006_

Date counsel notified: June 26^th, 2006

Sue Marcellos and Santos Zelaya - and - Woodbridge Management Ltd.

Thursday,

Courtroom Number 13 April 6^th, 2006

REASONS FOR DECISION

CUNNINGHAM, D., Associate Chief Justice (S.C.J., Divisional Court) (Orally):

This is an Appeal from a decision of the Ontario Rental Housing Tribunal granting the Respondent’s Application to terminate the tenancy and ordering the Appellant to pay certain costs of repair.

The Appellant argues that the Tribunal member erred in law by making findings unsupported by the evidence and further, by failing to exercise her discretion under section 84 of the Tenant Protection Act. An Appeal of this nature can only be brought on a question of law, and accordingly, the standard of review is correctness. (See Dollamore vs. Assuria). While the factual findings of the Tribunal are not subject to review, whether or not there is any evidence to support a finding is a question of law. It is the Appellant’s position here that the evidence tendered at the hearing did not support the Order made and that, accordingly, the member erred in law.

We have thoroughly reviewed the record herein and we are of the view that the evidence tendered, very clearly supported the Order made. The Tribunal member preferred the evidence of the landlord, that the tenants, or their guests, caused damage to the unit. This finding of fact was well-supported by the evidence. The damage, the member concluded, was beyond normal wear and tear and there was ample evidence to support that finding. Indeed, there was little, if anything, from the tenant to explain the damage.

As to the assertion that the member failed to properly exercise her discretion under section 84 of the Act, we conclude that the member was, indeed,

alive to the issue. (See paragraph 23 of the Reasons). From her Reasons, it is clear the member was aware, amongst other things, of the length of the tenancy, but that after taking into account all the evidence, chose not to exercise her discretion in favour of continuing the tenancy. Clearly the member, in considering section 84, implicitly concluded it would be unfair to the landlord to continue the tenancy. The Appellant, on the evidence, had caused the damage and was unable to offer an explanation for it, and indeed, did not commit to take better care. The application of section 84 falls within the expertise of the Tribunal and findings under section 84 are entitled to significant deference. The Appeal is dismissed.

Now, is there an issue as to costs?

.....SUBMISSIONS BY MS. CARTER

(Not transcribed in this transcript)

.....SUBMISSIONS BY MR. LANG

(Not transcribed in this transcript)

THE COURT: All right. We will fix costs in this matter, payable by the tenant to the landlord at $1,409.75, plus applicable G.S.T. If the unit is not vacated on or before May 31^st, 2006, the landlord may file this Order with the Sheriff so that the eviction may be enforced. And upon receipt of the Order, the Sheriff is directed to give vacant possession of the unit to the landlord on or after - you say seven days from that date?

MS. CARTER: No. I guess the seven days was meant to be from the date of the Order.

THE COURT: Yes. All right. I will just simply say that the Sheriff is directed to give vacant possession of the unit to the landlord. So the date that the tenant is to be out of the premises is on or before May 31^st, 2006. Thank you, counsel.

“Cunningham, J.”

Associate Chief Justice D. Cunningham

“Cusinato, J.”

The Honourable Mr. Justice A. Cusinato

“Reilly, J.”

The Honourable Mr. Justice R. Reilly

THIS IS TO CERTIFY THAT THE

foregoing is a true and accurate

transcription of the recordings to

the best of my skill and ability.

Peggy Bamber

Peggy Bamber

Certified Court Reporter