Court File and Parties
COURT FILE NO.: 52/05
DATE: 20070320
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, WHALEN AND CUMMING JJ.
B E T W E E N:
FOREST HILL GATES Respondent (Landlord)
- and -
RUTH WOLCH Appellant (Tenant)
Counsel: David S. Strashin, for the Respondent Howard J. Wolch, for the Appellant
HEARD at Toronto: March 20, 2007
Oral Reasons for Judgment
FERRIER J.: (Orally)
[1] The appellant, Ruth Wolch, appeals from the Order of the Ontario Rental Housing Tribunal, dated January 18, 2005, terminating the tenancy for failure to pay rent and from the February 7, 2005 Order refusing to set aside the Order of January 18.
[2] A motion was brought before us to admit fresh evidence. The motion is granted but for the purposes of this appeal only.
[3] The tenant has been a tenant at Forest Hill Gates since 1987. There have been numerous difficulties between the landlord and the tenant for several years not only related specifically to the tenancy. Throughout the term of the tenancy, the tenant has always paid her rent cheque later than the first day of the month because she did not receive her alimony cheque from her former husband until the first or second week of the month.
[4] In February, 2004, the landlord brought an application to terminate the tenancy due to persistent late payment of rent. The application was dismissed on the condition that the tenant pay the rent by the 10th day of each month and in the event of any such payment not being made by the 10th day of month within one year of the Order, the landlord could move without notice for an Order terminating the tenancy.
[5] The tenant failed to pay the rent for January, 2005, by the 10th of January and the landlord applied for and obtained the ex-parte Order of January 18.
[6] On the application to set aside the ex-parte Order of January 18, 2005, it was clear and not in dispute that the Order of February, 2004 had been breached. The rent had not been paid by January 10, 2005.
[7] In these circumstances, the Board dismissed the application. The transcript reveals that no opportunity was given to the tenant to provide evidence or make submissions concerning relief from forfeiture under s.84 of the Tenant Protection Act.
[8] In her Order of February 7, 2005, dismissing the application, the Board Member said:
“While I have considered the discretion granted to me by section 84 of the Act in determining whether to delay eviction in this instance, I have determined that the use of section 84 is not appropriate in this case.”
[9] Clearly the Board was mindful of the discretion which could be exercised under s.84. However, in our view, and with respect to the Board Member, her failure to afford the tenant the opportunity to address the issue is a failure of natural justice. This is so irrespective of how the tribunal might have exercised its discretion following evidence or submissions.
[10] In these circumstances, the Order of Board Member Buffa must be set aside and the matter is referred back to the Tribunal differently constituted for a new hearing of the application to set aside the Order of January 18, 2005.
[11] On the question of costs, I should note that the success on the appeal essentially is due to the error committed by the Board and not due to the conduct of the landlord. In those circumstances we are unanimously of the view that there should be no costs.
FERRIER J.
WHALEN J.
CUMMING J.
Date of Reasons for Judgment: March 20, 2007
Date of Release: March 22, 2007
COURT FILE NO.: 52/05
DATE: 20070320
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, WHALEN AND CUMMING JJ.
B E T W E E N:
FOREST HILL GATES Respondent (Landlord)
- and -
RUTH WOLCH Appellant (Tenant)
ORAL REASONS FOR JUDGMENT
FERRIER J.
Date of Reasons for Judgment: March 20, 2007
Date of Release: March 22, 2007