COURT FILE NO.: 507/05
DATE: 20071029
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
carnwath, jennings and gans jj.
B E T W E E N:
MARY CAMPBELL
Landlord
(Appellant)
- and -
PETER WORKMAN
Tenant
(Respondent in Appeal)
David S. Strashin, for the Landlord (Appellant)
Martin P. Zarnett, for the Tenant (Respondent in Appeal)
HEARD at Toronto: October 29, 2007
GANS J.: (Orally)
[1] This is an appeal from the Order of Paul DeBuono, a Member of the Ontario Rental Housing Tribunal, made on December 9, 2005, after five days of hearing.
[2] The consequence of his Order was that the landlord, the appellant before us, was obliged to give the tenant an abatement of rent totaling $10,000.00, the maximum amount then permitted under the applicable statute and certain other prospective abatements.
[3] The Member rooted his award in findings of tenant harassment and interference with the tenant’s use and occupation of a parking spot allegedly assigned to him by another tenant. The Member determined that the landlord had harassed the tenant by contacting the City of Toronto – Fraud Hotline to “report the tenant as a person who is fraudulently receiving benefits”. While the evidence falls short of establishing that the landlord contacted the fraud hotline, there is no doubt that there was evidence heard and filed at the hearing where the Member could safely conclude that the landlord had the “intent” to “negatively impact the tenant due to what she perceived as his failure to support her” in a previous application against another tenant. She sent at least one letter to social assistance alleging that the tenant was not trustworthy and had lied to her. A short time later she implicitly threatened to call the social assistance hotline and inform on the tenant.
[4] In our view, this evidence, in addition to her own testimony, entitled the Member to conclude as he did that the landlord had harassed the tenant. Insofar as the proceeding itself was concerned, while it is apparent that counsel opposite was seemingly argumentative and somewhat oppressive to the landlord qua witness, the Member did attempt to exercise a modicum of control over counsel, albeit one which had, unfortunately, little salutary effect. We do not find that such amounted to a denial of procedural fairness in any event.
[5] That being said, we are of the opinion that there was no evidence to support the Member’s conclusion that the tenant’s parking had been interfered with. The tenant was assigned a spot and chose to park his vehicle in another spot not assigned to him by the landlord.
[6] Counsel for the tenant fairly conceded that there was no evidence that the landlord interfered with the tenant’s use of his assigned spot.
[7] We find that the Member misapprehended the evidence on this point and came to a conclusion, which he was not entitled to do at law.
[8] We have some difficulty now unscrambling the abatement award and dividing it between the harassment and parking interference issues. We assess the abatement for harassment at $6,500.00. Paragraph 7 of the Order will be struck accordingly.
CARNWATH J.
[9] The appeal is allowed in part for oral reasons given by Gans J. An Order will go directing payment out of Court to the tenant of $6,500.00, plus accrued interest on that sum and payment out of $3,650.00, plus accrued interest on that sum to the landlord. The parties consent to a dismissal of their Small Claims Court action without costs. There shall be no order as to costs on the appeal, since success is divided.
CARNWATH J.
JENNINGS J.
GANS J.
Date of Reasons for Judgment: October 29, 2007
Date of Release: November 2, 2007
COURT FILE NO.: 507/05
DATE: 20071029
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
carnwath, jennings and gans jj.
B E T W E E N:
MARY CAMPBELL
Landlord
(Appellant)
- and -
PETER WORKMAN
Tenant
(Respondent in Appeal)
ORAL REASONS FOR JUDGMENT
GANS J.
Date of Reasons for Judgment: October 29, 2007
Date of Release: November 2, 2007