ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DURNO, ASTON and WILSON, JJ.
B E T W E E N: )
PAUL CYMBALSKI and )
JEANNE CYMBALSKI )
Applicants )
Respondents on the Appeal)
- AND - )
ROBERT ALCORN ) Robert A. Leck
) for the Respondent
Respondent )
Appellant on the Appeal )
) Heard at Newmarket:
) March 8, 2006
REASONS
WILSON, J:
1The Appellants, Paul and Jeanne Cymbalski, appeal from the order of Alan Mervin, a member of the Ontario Housing Rental Tribunal, (the Member), dated April 1st, 2005. He terminated the tenancy with Robert Alcorn, based upon the landlords’ application to occupy the rental property for his personal use.
2The Appellants raise several issues including:
First, that the hearing breached principles of procedural fairness and natural justice by the Member exhibiting bias or the reasonable apprehension of bias.
3Second, they allege that the Member failed to grant an adjournment to allow the Appellants to call evidence with respect to the maintenance issues, and to refute the bona fides of the landlord on the personal use issue.
4Finally, the Appellant alleges that the Member exhibited impatience with the tenants making detailed submissions concerning maintenance issues, and imposed unreasonable time limits with respect to the length of the hearing.
5We have reviewed the cogent reasons of the Member.
6The Appellants’ material raises the concern that no transcript or tape was available when they attempted to secure it for the purpose of this appeal. The difficulty we face is that it is virtually impossible to assess the issues raised by the Appellants without the benefit of a transcript or a tape.
7No transcript or tape recording was available for the proceedings due to a mechanical malfunctioning of the recording equipment.
THE LAW:
8The absence of a transcript or tape raised serious concerns for this court, given the matters in issue.
9We note that on at least five occasions this Court has commented unequivocally, and expressed grave concerns about the failure to properly record proceedings before the Tribunal.
10This failure to report the proceedings may well prevent this Court from fulfilling, in a meaningful way, its appellate functions.
11The first case is a decision of LaForme, J., (as he then was), in Smolcec v Longhouse Village (Thunder Bay) Inc., [2001] O.J. No. 875 (Div. Ct.) This decision provides:
“Although the governing legislation and
s.20 of the Statutory Powers and
Procedures Act do not mandate transcripts
or tapes, the absence of a transcript may
make it impossible for the Court to fairly
determine an issue raised on appeal.”
12He concludes at paragraphs 40 and 41 of his decision, as follows:
[40]
“Counsel for Longhouse Village provided
this Court with authorities such as
Meredith, in support of its position that
the Tribunal was entitled to make the
findings of fact it did. However, unlike
the authorities relied upon by Longhouse
Village, the circumstances of the case at
bar actually deprives this Court of the
ability to examine the evidence referred
to by Mr. Smolcec in his grounds of
appeal.”
[41]
“It is clear to me that the absence of
records, especially the transcripts, of
the original hearing of December 9th,
1999, that form the basis of the February
10th, 2000 review, has restricted Mr.
Smolcec’s ability to advance properly his
grounds for appeal. It is virtually
impossible for this Court to determine if
the errors alleged by Mr. Smolcec did in
fact occur during the original hearing.”
13These principles were applied in a further decision of Nimmo v Toronto Housing Co. [2002] O.J. No. 3450 (Div. Ct.) The Court concluded at paragraph 6:
“The 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.
14Similar concerns were voiced by this Court in a decision McKenzie v Supportive Housing in Peel [2205] O.J. No. 1518 (D.C.) by Lane, J. at paragraph 4:
[4]
“Regrettably, once again, the Court is
faced with an appeal from this Tribunal
where there is no transcript available.
The copy of the 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 s.84(1) and the provisions of
the Ontario Human Rights Code.”
15Two other decisions of this Court confirm that the failure to provide tapes or transcripts that make it impossible for the Court to determine the issues on appeal before it, constitutes in and of themselves grounds for an appeal, resulting in the matter being remitted to the Tribunal for a further hearing. (See Manpel v Greenwin Property Management [2005] O.J. No 3079 (Div. Ct.) and Fisher v Moir [2005] O.J. No. 4479 (Div. Ct.).
16In our view these cases apply to the case being considered by this court.
CONCLUSION:
17In the Appellant’s material issues were raised about the conduct of the proceedings, and comments made by the Member. These allegations are undisputed although the Respondent states that the comments made by the Member have been taken out of context. We cannot fairly assess this issue without the benefit of the transcript.
18As well, it is undisputed that during the hearing, the tenants sought legal advice from duty counsel and were advised to seek an adjournment to call evidence with respect to the bona fides of the landlord with respect to the personal use issue as well the maintenance issue. This request for an adjournment is documented. The Member refused the adjournment and adhered to the time limits imposed by him.
19In these circumstances, in the absence of a transcript, we cannot determine the issues raised on this appeal, and therefore, with reluctance, we set aside the decision of the Member and direct that the matter be remitted to the Tribunal to be reheard before a different Tribunal Member.
20On the next occasion we trust that adequate functioning recording equipment will be available.
21We understand that the landlord has initiated another Application alleging rent arrears. We urge the parties to consolidate all outstanding matters, to have this matter finally determined on its merits as soon as reasonably possible.
DURNO, J
ASTON. J.
WILSON, J.
Released: March 9th, 2006