ONTARIO
SUPERIOR COURT OF JUSTICE
(Divisional Court) at Brampton
B E T W E E N:
EDGARDO MEJIA
Appellant
- and -
ALESSIO CARGINI
Respondent
D. Beth Walden for the Appellant
Richard H. Parker, Q.C. for the Respondent
HEARD: January 18, 2007
APPEAL UNDER section 196 of the Tenant Protection Act, R.S.O. 1997 c. 24 respecting the residential premises known as 52 Rosepac Avenue, Basement Unit, Brampton, Ontario, L6Z 2S4.
CUNNINGHAM A.CJ., LANE AND JENNINGS J.J.
JUDGMENT
Jennings j.
INTRODUCTION and overview:
- The appellant, Mr. Mejia, appeals from the order of the Ontario Rental Housing Tribunal [the “Tribunal”] dated October 24, 2005 dismissing a claim for an award of general damages finding that the tribunal lacked jurisdiction under the Tenant Protection Act, S.O. 1987 c.24 (the “Act”) to make the award requested.
BACKGROUND:
In April 2005 Mr. Mejia, his wife and four children began living in a basement apartment rented from the respondent/landlord, Mr. Cargini.
From the outset, there were difficulties with the tenancy and in the relationship between the landlord and the tenant.
The Tribunal found that the difficult relationship culminated in an assault upon the tenant by three friends of the landlord, in the presence of the landlord, on October 30, 2005. The Tribunal found the assault took place in the presence of the tenant’s family and that its purpose was to put pressure upon the tenant to vacate the premises.
The tenant was required to attend hospital for treatment. The Tribunal did not find that the landlord had himself committed the assault, but found that he did nothing to stop it, and that he was responsible for the actions of his friends. The Tribunal found that the landlord had thereby interfered with the reasonable use and enjoyment of the apartment by the tenant and his family.
The Tribunal terminated the lease at the request of the tenant. It ordered a rent abatement of $300.00 per month for three months, moving expenses incurred by the tenant in the amount of $240.00 and a fine payable to the Tribunal in the amount of $300.00.
With respect to the tenant’s claim for an award of general damages, the Tribunal requested and received further submissions from the tenant’s counsel. The Tribunal then held that the cases submitted “…are directed to damages as a result of Torts, but do not involve a tenancy or the application of the Tenant Protection Act, 1997 and therefore, were not useful to me in determining the scope of my jurisdiction to award other than compensatory damages. The tenant has an avenue available to seek remedies for the tortusous (sic) damages other than those requested in his application before this Tribunal for harassment and interference with the use and enjoyment of his rental unit.”
It should be noted that the tenant does not seek damages in tort, but rather damages arising out of the breach of his right to quiet enjoyment of his apartment, pursuant to the rental contract.
JURISDICTION:
- Section 196 of the Act permits an appeal from an order of the Tribunal to this Court on a question of law only. This Court may affirm, rescind, amend or replace the order under appeal, or remit the matter to the Tribunal with the opinion of the Court or “make any other order in relation to the matter that it considers proper.” [Act section 196(1), (4) and (5)].
STANDARD OF REVIEW:
- As decisions of the Tribunal may only be appealed on a question of law, the standard of review is correctness.
Jemiola v. Firchuk, [2005] O.J. No. 6085 (Div. Ct.)
Samuel Property Management Limited v. Nicholson, 2002 45065 (ON CA), 61 O.R. 3d 470 (C.A.)
ISSUE:
- The issue is whether the Tribunal had the jurisdiction to award damages under the Act for a breach of a tenant’s contractual right to quiet enjoyment.
ANALYSIS:
Section 157 of the Act gives the Tribunal “exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act”.
Section 162 of the Act gives to the Tribunal “authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction under this Act”.
Having found as a fact that the landlord “harassed, threatened the tenant and interfered with the tenant’s use and enjoyment of the rental unit”, the Tribunal could grant remedies pursuant to the provisions set out in section 35 of the Act. That section provides in part that if the Tribunal determines that a landlord has done what the landlord did in this case, the Tribunal may, amongst a number of specific remedies “make any other order that it considers appropriate”.
Similar language was used in section 94(3)(c) of the Landlord and Tenant Act, the predecessor statute to the Tenant Protection Act, which provided that a judge to whom application was made to enforce obligations imposed under the statute, may “make such further or other orders as the judge considers appropriate”.
In Shaw v. Pajelle, [1985] O.J. No. 833, Montgomery J. sitting as a single judge of this Court held that section 96(3)(c) (later section 94(3)(c)) of the Landlord and Tenant Act gave the Court in a landlord and tenant proceeding, the power to award damages. In so doing, he held that the decision in Beyer et al v. Absamco Developments Ltd. et al, 1976 733 (ON SC), 12 O.R. (2d) 768, which held to the contrary, was wrong.
In MacKay v. Sanghera, (2001) CarswellOnt 2349 (Div. Ct.) (e)(C), this court held that the residual clause in the Act, then section 34(1)(5) which permits the Tribunal to “make any other order that it considers appropriate” afforded a basis for an award of damages to tenants for consequential damage arising from a landlord’s breach of its obligations under the Act. See also Nesha v. Bezrukova, [2003] O.J. 3787 at para 4 [Div. Ct.]
Those cases and the grammatical and ordinary sense of the language giving the power to “make any other order that it considers appropriate” persuades us that the Tribunal has the power to award damages for breach of the contract of lease. To hold otherwise would be contrary to the intent of the legislature which gave to the Tribunal the jurisdiction under section 162 to which I have previously referred, to determine all matters arising out of the landlord and tenant relationship.
Accordingly, we find that the Tribunal was incorrect and erred in law in determining that it had no jurisdiction to award damages for breach of contact.
DISPOSITION:
We have before us a transcript of the hearing before the Tribunal, in which counsel’s submissions supporting the tenant’s claim for damages are recorded. Given the amount in issue, it does not appear to us to be fair to the parties to refer the matter to the Tribunal for a further hearing on the quantum of damages. We believe we are in the same position and possessed of the same material as was the Tribunal for the purpose of assessing damages.
It appears that in the altercation the tenant was punched 7 or 8 times and received a cut finger. The landlord was himself hospitalized for one month immediately after the incident for reasons unrelated to the incident. During that time, the tenant and his family remained in the apartment. On December 4, 2005 they moved to newly obtained premises.
The tenant is aware of his right to claim damages in tort from his attackers, but has elected not to proceed. The Tribunal awarded him $900.00 as an abatement of his rent and has ordered that his moving expenses be paid. However, the landlord’s successful attempts to coerce his tenant into vacating his apartment was an outrageous breach of the rental agreement. Taking those facts into account, we believe an award of $4,000.00 for breach of the tenant’s contractual right to quiet enjoyment is warranted, and the decision of the Tribunal is amended to reflect that award.
The tenant is entitled to the costs of this appeal which is fixed in the amount requested by counsel in the amount of $1,400.00 inclusive of GST and disbursements.
Cunningham A.C.J.
Lane J.
Jennings J.
Released: 2007/02/06
COURT FILE NO.: DC-06-00-00-08
DATE: 2007/02/06
B E T W E EN
EDGARDO MEJIA
Appellant
- and -
ALESSIO CARGINI
Respondent
REASONS FOR JUDGMENT
CUNNINGHAM A.CJ., LANE AND JENNINGS J. J.
Released: 2007/02/06