ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Cunningham, A.C.J., Meehan and Hill JJ.
B E T W E E N:
CHARLENE WAMBOLDT and JODY WAMBOLDT
D. Gordon Bent, for the Appellants
Tenants
(Appellants in Appeal)
- and -
WILLIAM WELLMAN
Thomas E. Cole, for the Respondent
Landlord
(Respondent in Appeal)
HEARD at Newmarket:
September 10, 2007
REASONS FOR JUDGMENT
BY THE COURT*
Introduction
1This is an appeal under s. 196 of the Tenant Protection Act S.O. 1997, c. 24 of the May 19, 2006 Order of the Ontario Rental Housing Tribunal (ORHT) and the further Request to Review decision of June 23, 2006.
2The appellants are husband and wife who resided with their two young children at 25 Reid Street, Lakefield, Ontario as tenants of the landlord, William Wellman.
3Mr. Wellman purchased the property in July 2002. The landlord acquired a building permit for an addition to the residential structure in June 2003 for the purpose of an office.
4In September 2005, the appellants contacted the Township of Smith-Ennismore-Lakefield over concerns as to the physical state of their accommodation. An October 25, 2005 report of a By-law Enforcement Officer relating to his site inspection reads in part:
The inspection was conducted at your request in an effort to determine if the house met the Minimum Property Standards as defined in the Township’s Minimum Property Standards By-law No. 2002-72…
My inspection revealed the following:
The shingles are damaged and need to be replaced. Section 3.17 of the enclosed Property Standards By-law requires that roofs be maintained in a weather tight condition.
There is an unfinished building foundation that presents a danger to children and pets that is not properly fenced that must be addressed immediately. Section 2.02 of the by-law states that every yard shall be kept free from conditions that may create a accident hazard.
There is a large hole in the wall above the foundation that must be fixed and insulated prior to the siding being installed.
Insulation and siding is required and should be replaced if new addition is not built before freeze up. If the new addition takes place this will not be required. Section 2.10 and 3.20 deal with issues of insulation and siding.
Soffit and fascia is missing in numerous areas and must be brought into accordance with section 2.10 of by-law 2002-72.
There are Electrical plugs in the second floor bedroom which do not work. These outlets and fixtures must be repaired in accordance with section 3.36 and 3.37 of by-law 2002-72 by a qualified electrician as well as the outlets in basement that produce shocks when touched.
The windows appear to be fairly new and in good condition but they were never caulked on the outside to prevent drafts. Section 3.12 deals with windows and tells us they must be draft free to prevent heat loss.
…It is imperative that these items be addressed in a timely fashion while the whether permits and prior to the heating season.
The ORHT Order to Repair
5On November 4th, 2005, ORHT Member Trueman issued an Order (Tribunal File No. TEL-56248/TET-05210) in a dispute between the parties to this appeal in which the landlord sought arrears of rent while the tenants claimed a rent abatement for about a year on account of an assertion of the disrepair of the premises. With an offset of amounts owing, the tribunal ordered the landlord to pay the tenants $60.00 and, having found the landlord in breach of his obligation under s. 24(1) of the Act to keep the premises “in a good state of repair and fit for habitation”, further ordered pursuant to s. 34(1)4 that:
It is determined that:
On October 1, 2004, the Tenants issued a “reminder” notice to the Landlord which outlined some of their maintenance and repair concerns. No major work was performed by the Landlord.
On October 25, 2005, a site inspection took place at the rental unit, by a local municipal property standards officer. The results of that inspection were conveyed to the Landlord by way of letter from the Township of Smith-Ennismore-Lakefield. The letter highlighted several deficiencies at the rental unit, many of which were the same as the concerns raised by the Tenants in October 224.
The Landlord failed to meet the Landlord’s obligations under section 24 of the Tenant Protection Act, 1997 to repair or maintain the rental unit.
It is ordered that:
The Landlord shall complete any and all repairs to the rental unit by December 31, 2005, in accordance with the property standards report issued October 25, 2005 by the Township of Smith-Ennismore-Lakefield.
6On December 22, 2005, the respondent landlord served an application to terminate the tenancy of the Appellants for non-payment of rent and because he intended to convert the property to a non-residential use. On or about March 8, 2006, the appellants filed a T6 Tenant Application About Maintenance seeking reimbursement from the landlord for costs incurred following Mr. Wellman’s refusal to repair as well as a rent abatement of $1,200.00:
$1200.00 from Jan, Feb, Mar @ $400.00 due to the landlords failure to do the ordered repairs from the Order dated Nov 4, 2005 by ORHT Member, Christopher Trueman. The abatement is based on having to live in a cold house and having a furnace that has not been inspected or repaired for years with the enormous loss of heat from the unfinished back wall, unfinished window in upstairs bathroom and no operable furnace vent to upstairs bedroom. Due to the Landlords failure to comply or refusal to comply has caused anxiety to the Wamboldt family. A charge of approximately 50% of the rent should be levied against the Landlord until the work is complete. As it stands the $1200 is for January, February and March. We will go by whatever the Honourable Member deems to be just.
The ORHT Hearing of May 16, 2006
7On May 16, 2006, ORHT Member Burke conducted a hearing relating to Tribunal File No.: TEL-59180 and TET-05590. Mr. Burke’s May 19, 2006 Order under sections 34 and 69 of the Act describes the nature of the applications before the tribunal:
William Wellman (the ‘Landlord’) applied for an order to terminate the tenancy and evict Charlene Wamboldt and Jody Wamboldt (the ‘Tenants’) because the Tenants did not pay the rent that the Tenants owe. That is an L1 application.
William Wellman also applied for an order to terminate the tenancy and evict Charlene Wamboldt and Jody Wamboldt because he intends to convert the unit to a non-residential use. The Landlord also claimed compensation for each day the Tenants remained in the unit after the termination date. This is an L2 application.
Charlene Wamboldt and Jody Wamboldt (the ‘Tenants’) applied for an order determining that William Wellman (the ‘Landlord’) failed to meet the Landlord’s maintenance obligations under the Tenant Protection Act, 1997 (the ‘Act’) or failed to comply with health, safety, housing or maintenance standards. This is a T6 application.
8At the May 16th hearing, the tenants acknowledged a partial withholding of the December 2005 rent and the entirety of the rent for May 2006 because the landlord had not complied with the ORHT Order of November 4, 2005 as well as his failure to replace a heating thermostat which the tenants replaced at their own expense.
9Although no progress had been made by the landlord in the three years since the issuance of the building permit to place an addition on the existing structure, the landlord informed the tribunal that his application pursuant to s. 69 of the Act to terminate the tenancy was with a good faith and honest intent to convert the premises to other than residential use (see ss. 71 and 53(1) of the Act). Mr. Wellman maintained he intended to locate a taxi office at the property. At the hearing, the appellants challenged the bona fides of the landlord alleging that the respondent’s application was motivated by his continuing desire to avoid compliance with the November 4, 2005 ORHT Order.
10Mr. K. Newson, the by-law enforcement officer and building inspector who issued the October 25, 2005 report testified at the hearing that the landlord failed to comply with the November 4, 2005 ORHT Order on or before the December 31st, 2005 deadline. As of a January 16, 2006 inspection, on the witness’ evidence, “the majority of it was not done”. Mr. Newson again provided the landlord a letter requiring compliance but did not seek any other type of order. Having re-attended the property on May 15, 2006, the day before the hearing, Mr. Newson was in a position to provide this testimony:
Q. Would you say then that the issues that are outstanding are issues that have been outstanding since last October.
A. Yes I would.
Q. Mr. Newsome, based on the fact that the November 4th Order was issued by the Tribunal, is that one of the reasons that you may not have gone ahead with an order as it was already being dealt with by the Tribunal.
A. Yes.
Q. I wasn’t sure if she’d talked to you. But it was because the Tribunal issued an order to be done by December 31st that you basically left it up to them?
A. I left it up to them because they have more authority than I do.
Q. So in your estimation, that was an order issued by the Tribunal or that’s what you perceive it to be?
A. I (inaudible) was an Order.
Q. You were there yesterday. Would you say this meets minimum standards in this house?
A. Like I said, there are a few things that are not (inaudible).
Q. Enough of them to create a (inaudible) with a tenant in your opinion?
A. Not in this season, no.
Q. But over the winter?
A. The roof, yes. Through the winter, yes (inaudible) heat loss is more powerful (inaudible)…it’s hard to tell. The only reason I found this one was (inaudible) I put my hand in the side and when I grabbed it with two fingers and pulled it away – if I pulled any harder, the whole bottom of the window would come out in my hands.
11In the hearing, the appellants filed the January 19, 2006 report of Mr. Lamarre, Manager of Building and Planning for the Township relating to the January 16th site inspection. Mr. Lamarre described outstanding deficiencies which in his view needed to be dealt with “immediately” including the “poor state of various portions of the roof” and no improvement to the damaged shingles. Signs of leakage were evident on the ceilings of two rooms on the second floor. Insulation and siding were required – these matters were “largely unaddressed”. On the subject of air infiltration around the windows, the inspector noted an absence of any exterior trim around the second floor bathroom window – a situation “allowing significant air infiltration”.
12In her testimony, Charlene Wamboldt described to the tribunal the high heating costs incurred December 2005 to May 2006 on account of the respondent’s non-compliance with the November 4, 2005 Order. She had to keep her thermostat set at 16° C to keep the furnace from running full-time. She had done some membrane patching on a wall. There was a lack of insulation. Under questioning from the tribunal member, the appellant gave this evidence:
Q. I want to make sure I get this question – (inaudible) was asked of you by Mr. Babcock that the reason you’re here is to deal with the issues that have not been addressed as ordered and the Tribunal Order of November 4th.
A. Yes.
Q. So, of the issues we’ve talked about today, so far, and we’re not done with this thing yet, but the issue that has come up since November the 4th would be the sink – that’s the new issue?
A. Yes.
Q. Everything else is an issue that you had previously talked about and I want to make sure (inaudible) the issue of the sink is on this letter of December 1st and everything else was (inaudible) previous order and the inspections were all done and (inaudible) orders having been complied with (inaudible)?
A. Except for the furnace – the thermostat, which had to do with the (inaudible) – that’s the reason it’s been brought in today.
Q. Right.
13Immediately following this exchange, Mr. Burke stated:
Well, I’m going to hear submissions on behalf of both parties. The evidence that has come forward to me at this point, via direct evidence, via cross-examination and by my questions to the tenant is – and the question I specifically asked – what issues are new since November 1st. The evidence I got was a leaky sink and a thermostat. The thermostat was previous to that I believe but was replaced after that.
I asked the question of what issues were dealt with in the previous Tribunal Order. The response I got was everything but the sink…
If that’s the case, then the issues have been raised previously by the Tribunal and dealt with in the previous Tribunal Order brings us to a legal term, res juda cata [res judicata], already been dealt with, already solved, already addressed, other than the kitchen sink. If a landlord has failed to comply with an order that was issued by the Tribunal, then there are different courses of action. It doesn’t mean the tenant can file another application for exactly the same issues. That’s why I have been asking all along what the new issue was, what the new issue was, what the new issue was. The only new issue before me is the kitchen sink so I’m looking for submissions from the parties as to whether or not the Tribunal has to – or me in this particular situation has jurisdiction to deal with any issues other than the kitchen sink.
If the – sorry, bathroom sink. The sink in the lower bathroom is leaking. But if member…has ordered and taken into consideration all these orders and said, you know what, now you have to comply with the proper standards notice, then those issues have been dealt with by the Tribunal. I’m not saying they have been fixed. I’m saying the Tribunal has already heard evidence on those and is not in a position, nor should I be in a position to hear evidence on all those issues again. They’ve been dealt with so I’m looking for submissions of the parties…since this application.
14In Mr. Burke’s written reasons, under the heading, “Findings of fact”, he in part observes:
Mr. Ken Newson, By-Law Enforcement Officer for the Municipality testified that he issued an informal notice to the Landlord on October 25, 2005. The notice advised the Landlord of several items that did not comply with the Municipal Property Standards Bylaw. Mr. Newson testified that as of the date of the hearing this notice has not been complied with. Mr. Newson also testified that the Building permit for the property is still active.
The Tenants gave evidence that the repairs required to be made as per Tribunal order TEL-56248 and TET-05210 have not been completed by the Landlord. This order stated that the Landlord shall complete any and all repairs to the rental unit by December 31, 2005, in accordance with the Property Standards report issued October 25, 2005 by the Township of Smith-Ennismore-Lakefield.
The Tenants gave evidence that they gave the Landlord a letter on December 1, 2005 that advised the Landlord of repairs that were required to the toilet and the sink in the lower bathroom. The Tenants provided a copy of this letter at the hearing. The Tenants also gave evidence that the reason they filed this T6 application is because the Landlord has failed to comply with the previous Tribunal order. The Tenants also admitted during questioning that the only issues that have not been dealt with in the previous order are the toilet and the sink.
15Beneath a further heading, “It is determined that:”, the reasons state in part:
The maintenance issues the Tenants are claiming, other than the toilet and the sink, have already been dealt with by the Tribunal. The Tenants cannot file a T6 application because the Landlord did not comply with the order that addressed these issues. I do not have jurisdiction to hear the issues that have already been disposed of by a previous order of the Tribunal.
The Landlord did not make any repairs to the toilet or the sink in the lower bathroom. Therefore, I find that the Landlord failed to meet the Landlord’s obligations under section 24 of the Act to repair or maintain the rental unit.
16The Order component of Mr. Burke’s reasons included termination of the tenancy as of June 30, 2006 and an order for repair of the bathroom sink and toilet by June 15, 2006.
The Review Decision
17On June 9, 2006, pursuant to Rule 27.1 of the Ontario Rental Housing Tribunal Rules of Practice, the appellants requested a review of the May 19 Order of the ORHT.
18A request to review will only be allowed where an ORHT member determines that the order may contain a serious error or that a serious error occurred in the proceedings (Rule 27.2). A hearing is not required as Rule 27.12 permits a tribunal member to dismiss a request to review without affording a hearing.
19The appellants’ documentation filed with the ORHT entitled “Reasons for Request to Review” challenged Mr. Burke’s Order on several bases including dismissal of their application “due to res judicata” and, in a related submission stated:
We would ask that the Order issued by Mr. Burke, particularly in regard to TEL-59180, be stayed.
In regard to TET-0559, Mr. Burke seriously erred in not allowing any evidence as to the abatements requested in the T6 application which were in fact new costs associated with the landlord’s failure to do the repairs that were ordered in the November 4, 2005 order. The repairs may have been dealt with before, however the costs during the winter, caused by the landlords failure to comply, are new and should have been considered.
Evidence given by Ken Newson of the Township was that extreme heat loss would occur due to the failure of the repairs to be completed when ordered.
In paragraph 6, page 2 of Mr. Burke’s order states that the tenants admitted during questioning that the only issues that have not been dealt with in the previous order, are the toilet and sink. This is totally wrong and both were part of the new application. The list of unfinished work on the previous order was listed by Mr. Lamarre, of the inspection department, in his letter dated January 19, 2006, to the tenant. The document was entered as evidence and included 4 items which are not minor in nature. Mr. Burke seriously erred in basing his decision on wrong information that was not evidence given by the tenants at the hearing as he states.
This seriously interfered with the tenants right to be heard in full and not be cut off due to the repairs being covered by a previous order. Pages 2 and 3 of the T6 refer to the landlords failure to maintain and asks in part 3 as to what amount the abatement should be. We believe Mr. Burke failed to allow the tenants a full hearing and in so doing jeopardized their rights to a full and fair hearing.
(emphasis of original)
20By a decision issued June 23rd, 2006, without the holding of a hearing, ORHT Member Fellman stated:
It is determined that:
I am not satisfied that there may be a serious error in the order or that a serious error occurred in the proceedings.
The Tenants assert in the Review Request that new evidence not submitted at the hearing establishes that the Landlord intends to continue using the rental unit for purposes of a residential tenancy despite his stated intention to convert it to a non-residential use. All evidence must be submitted to the Tribunal before or during the course of the hearing, and the Member must base his decision upon such evidence. A Review Request is not an opportunity to submit additional evidence that was not provided during the hearing.
The Tenants assert in the Review Request Member Burke erred in granting the Landlord’s application because the Landlord has been in possession of the permits for two and a half years without acting on them, and the permits refer to the additional structure. Member Burke considered this issue in paragraph two of the order. Member Burke was satisfied that the Landlord intends to convert the rental unit to a commercial use despite the fact the Landlord has been I possession of the permits for two and a half years. I find no reason to believe that Member Burke committed serious error in reaching this finding.
The Tenants assert in the Review Request that Member Burke erred in disallowing most of the Tenants’ maintenance application for reason of res judicata as the same matters had been considered in order TEL-56248/TET-05210, issued on November 4, 2005. The Tenants assert that their application is not subject to res judicata because subsequent to the issuance of order TEL-56248/TET-05210, the Tenants have experienced additional damages as a result of the Landlord’s failure to comply with order TEL-56248/TET-05210. The Tenants have already been granted a remedy in respect of their maintenance concerns in order TEL-56248/TET-05210. Res judicata bars the Tribunal from reconsidering and ordering additional remedies in respect of the maintenance issues already considered by the Tribunal in order TEL-56248/TET-05210. As noted by Member Burke, an application cannot be used as a means of enforcing compliance with a previously issued Tribunal order.
The Tenants assert in the Review Request that Member Burke erred in granting the Landlord’s application to terminate the tenancy in spite of the fact that the Landlord has failed to comply with order TEL-56248/TET-05210. I find that Member Burke fully considered the Tenants’ submission respecting maintenance and found that the Landlord is in breach of his obligation under section 24 of the Tenant Protection Act, 1997 (“Act”) to maintain or repair the rental unit. The Member did not find that the Landlord is in serious breach of his responsibilities pursuant to paragraph 84(2)(a). Absent a finding that the Landlord is in serious breach of his responsibilities under the Act, a Member has the authority to grant an application for termination of the tenancy even where the Landlord has not met his obligation to repair or maintain the rental unit. I find no reason to believe that Member Burke used his authority improperly in this matter.
It is ordered that:
- The request to review order TEL-59180 issued on May 19, 2006 is denied. The order is confirmed and remains unchanged.
The Appeal to Divisional Court
21The appellants raised two grounds in their written materials submitting that:
(1) the hearing and review tribunal members both erred in law in finding that the doctrine of res judicata prevented the Tribunal from considering damages and expenses incurred by the appellants after December 31, 2005 as a result of the landlord’s non-compliance with the earlier Order to carry out repairs dated November 4, 2005
(2) the review officer applied an incorrect test to exclude the appellants’ evidence to establish the respondent landlord intended to continue renting out the unit, contrary to his stated intention, by failing to consider whether or not there was a reasonable explanation from the tenants for the proposed late filing of that evidence.
22The corresponding relief sought by the appellants is as follows:
(a) that the Order of Mr. Burke dated May 19, 2006 and the Review Order of Mr. Fellman dated June 23, 2006 be set aside and that the appellants’ application be remitted to the ORHT for a new hearing to receive and consider any evidence adduced by the Tenants regarding the alleged breach by the landlord of Order TEL-56248/TET-05210 dated November 4, 2005 and award damages for expenses incurred and compensation claimed by them as a result
(b) that the appellants be permitted to make submissions to ORHT to explain their reasons for late filing of evidence relating to the landlord’s intentions to continue renting the premises in question, and if there is a reasonable explanation for the late filing, to hear such evidence and determine the appellants’ application on its merits.
23The landlord’s factum did not directly deal with the “fresh evidence” ground as to whether a tenant could seek to enhance the hearing record in a request for review of a hearing order.
24However, in response to the appellants’ first point, the respondent submitted that:
(a) the hearing officer, Member Burke, did not err in determining that he was without jurisdiction in a T6 Application by tenants to consider damages suffered by the appellants if the respondent landlord subsequently failed to comply with a prior ORHT order “that had addressed the issues and had not been complied with”
(b) the decision of Member Trueman raises the issue of res judicata by both issue estoppel or cause of action estoppel because:
(i) it was a final decision pronounced by a court (tribunal) of competent jurisdiction over the parties and the subject matter
(ii) the decision was, or involved, a determination of the same issues or cause of action as that sought to be controverted or advanced in the present litigation and
(iii) the parties to the prior judicial proceeding or their privies are the same persons as the parties to the present appeal
(c) in any event, should Member Burke “have been entirely wrong in his interpretation of the law”, the hearing officer “held that all the outstanding issues” addressed in the November 4, 2005 ORHT order “had been complied with”.
Analysis
25Although entitled to be heard on the appeal, the ORHT did not participate in this appeal. Our jurisdiction is limited to review “only on a question of law” (T.P.A. 1997, s. 196(1)). The appellants are not in current occupation of the rented premises.
26On behalf of the appellants, Mr. Bent narrowed his oral submissions to argue that the ORHT hearing and review adjudicators misunderstood and misapplied the doctrine of res judicata and in doing so committed reversible legal error. In our view, the appellants have properly raised a question of law relevant to the decision-making of the adjudicators reviewable on a standard of correctness.
27Over time, the law has developed a number of techniques to prevent abuse of the decision-making process. It is in the interests of justice to achieve finality, to avoid duplicative litigation and the prospect of inconsistent results, and to reduce undue costs. The doctrine estoppel per rem judicatam is one common law measure which seeks to advance the notion that “a dispute once judged is not subject to relitigation”: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460 at para. 20. As stated by Wilson J. (dissenting in the result) in R. v. Grdic, [1985] 1 S.C.R. 810 at 815: “[t]he doctrine of res judicata reflects the fundamental premise that there must at some point be an end to litigation”, and accordingly, “the doctrine is generally treated as part of the law of estoppel”:
In its broadest sense a plea of res judicata is an allegation that the entire legal rights and obligations flowing between the parties, including questions of both law and fact, have been conclusively disposed of by an earlier judgment.
The bar extends to the cause of action adjudicated (action estoppel) as well to precluding relitigation of the constituent issues or material facts necessarily embraced in the proceedings (issue estoppel).
28It has been observed that, “[i]n short, res judicata means “something that has clearly been decided””: R. v. Duhamel, [1984] 2 S.C.R. 555 at 561.
29Issue estoppel, a common law or judge-made rule of policy, calls for a judicial balance between finality, fairness, efficiency and the authority of judicial decisions: Toronto (City) v. C.U.P.E., Local 79 (2001), 55 O.R. (3d) 541 (C.A.) at para. 33, 73-81 (aff'd 2003 SCC 63, [2003] 3 S.C.R. 77 at para. 15); Danyluk, at 473-4; Minott v. O'Shanter Development Co. (1999), 42 O.R. (3d) 321 (C.A.) at para. 16-7 (notice of discontinuance filed [1999] S.C.C.A. No. 120); Machin et al. v. Tomlinson (2000), 51 O.R. (3d) 566 (C.A.) at para. 11.
30Subject to an overriding discretion to ensure justice in each case"[i]ssue estoppel is a branch of res judicata, which precludes the relitigation of issues previously decided in court [or before a tribunal] in another proceeding... For issue estoppel to be successfully invoked, three preconditions must be met: (1) the issue must be the same as the one decided in the prior decision; (2) the prior judicial decision must have been final; and (3) the parties to both proceedings must be the same, or their privies": Toronto v. C.U.P.E. (S.C.C.) at para. 23.
31In deciding whether relitigation is precluded, the court must in the end decide whether finality concerns should outweigh an individual litigant's claim that the justice of the specific case warrants relitigation: Toronto v. C.U.P.E. (Ont. C.A.) at para. 77, (S.C.C.) at para. 53. It has been observed of issue estoppel"a judicial doctrine developed to serve the ends of justice should not be applied mechanically to work an injustice": Danyluk, at 465-6, 481. The objective of the court's overriding discretion to permit relitigation is to ensure that adherence to issue estoppel does not "cause unfairness or work an injustice" - "judicial discretion is required to achieve practical justice": Minott, at para. 49-50, 60. However, while the discretion is not to be routinely exercised"the discretion is necessarily broader in relation to the prior decisions of administrative tribunals": Danyluk, at 492.
32The party seeking to invoke the discretion has the burden of demonstrating injustice: Schwenke v. Ontario (2000), 47 O.R. (3d) 97 (C.A.) at para. 39. The list of factors relevant to the court's discretion is open and includes potential injustice taking into account the entirety of the circumstances: Danyluk, at 494, 498.
33Turning back to the present case, the March 2006 T6 Tenant Application About Maintenance, adjudicated upon in May of 2006, identified ongoing delinquencies by the landlord in the state of repair of the rented premises. Some of these alleged delinquencies or breaches of the minimum standards of s. 24 of the Act remained outstanding as a result of the landlord’s non-compliance with the ORHT Order of November 4, 2005. As a result, and perhaps unfortunately, language has been employed from time to time in these proceedings suggesting that the appellants’ focus is upon non-compliance with that order. But the substance of the tenants’ 2006 application is clearly apparent on the face of their written application (see para. 6 above) seeking rent abatement and damages in the form of expenses incurred by the tenants on a continuing basis after December 31st, 2005.
34For example, structural disrepair identified in the October 2005 inspection report relating to temperature control and heat loss, determined at the November 2005 ORHT hearing to constitute a breach of the s. 24(1) standard imposed upon the landlord, and ordered to be repaired by the end of 2005, if not so repaired could materially impact upon the tenants’ enjoyment of the rented premises and cost of living therein from January 1st, 2006 onward. In other words, in the appellants’ view, which we consider to be correct, non-compliance with the ORHT Order of November 4, 2005 occasioned an ongoing breach of the s. 24(1) threshold standard in 2006 entitling them, pursuant to s. 34(1) of the Act, to seek relief from the tribunal:
(1) If the Tribunal determines in an application under paragraph 2 of subsection 32 (1) that a landlord has breached the obligations under subsection 24 (1), the Tribunal may do one or more of the following:
Terminate the tenancy.
Order an abatement of the rent.
Authorize a repair that has been or is to be made and order its cost to be paid by the landlord to the tenant.
Order the landlord to do specified repairs or other work within a specified time.
4.1 Order the landlord to pay a specified sum to the tenant as compensation for,
i. the costs that the tenant has incurred or will incur in repairing or replacing property of the tenant that was damaged, destroyed or disposed of as a result of the landlord’s breach or breaches of the obligation under subsection 24 (1), and
ii. other reasonable out-of-pocket expenses that the tenant has incurred or will incur as a result of the landlord’s breach or breaches of the obligation under subsection 24 (1).
- Make any other order that it considers appropriate. 1997, c. 24, s. 34 (1); 2000, c. 26, Sched. K, s. 6 (6).
35In furtherance of their application, the appellants provided evidence through Mr. Newson and Ms. Wamboldt of lack of insulation and other structural inadequacies occasioning excessive heat loss in 2006. In her testimony, Ms. Wamboldt spoke to the increased expenses associated with this problem.
36When ORHT Member Burke restricted his inquiry as to what “new” issues existed after November 4th, 2005 and applied the res judicata doctrine to avoid examining any issues “raised previously” and dealt with in the November 4, 2005 order, he fell into error. The appellants were not seeking to relitigate the identified matters of disrepair identified in the tribunal’s earlier order of 2005. To the contrary, the appellants were relying on the continued existence of some of those deficiencies in 2006 to establish a breach of their s. 24(1) right as well as related expenses incurred in 2006. In terms of estoppel, this did not amount to relitigation of the same issue before Mr. Trueman in November 2005. Nor could it have been anticipated at the time of the November 2005 ORHT hearing that 2006 would commence with the tribunal’s order unfulfilled. Res judicata had no application to what Member Burke was being asked to determine.
37Mr. Cole alternatively submitted, though it is fair to say perhaps not with overwhelming enthusiasm, that the adjudicator found as a fact that, beyond the plumbing matters, the appellants had in any event failed in their discharge of proof as to the existence of any other departures by the landlord from the s. 24(1) standard. That being the case, according to the respondent, any error of law by the tribunal in its reasons relating to res judicata amounted to harmless or inconsequential error.
38We are unpersuaded by this submission. Ms. Wamboldt described to the adjudicator the non-plumbing deficiencies and in particular the issues relating to heating. The township inspector’s evidence was confirmatory of the tenant’s testimony. On the hearing date, Mr. Burke himself stated:
…then those issues have been dealt with by the Tribunal. I’m not saying they have been fixed.
In his reasons for judgment, without committing to findings of fact, the adjudicator repeated that he had no jurisdiction to hear issues already disposed of by the prior tribunal ruling. Indeed, Member Burke limited the appellants’ attempts to introduce evidence relevant to repair and maintenance matters.
39To the extent that Member Burke curtailed the appellants’ attempts to introduce evidence in the hearing relating to ‘fail to repair and maintain’ issues that were also the subject of the November 2005 ORHT hearing, he erred. The tribunal had a new application before it and the fact that there existed 2006 breaches of s. 24(1) of the Act that were the same and unremediated since 2005 because of the landlord’s non-compliance with the earlier order, did not act as a bar to the appellants introducing relevant evidence in the 2006 hearing regarding ongoing breaches of s. 24(1).
40To the extent that Member Fellman considered, as did Member Burke, that the May 2006 application of the appellants was simply “a means of enforcing compliance with a previously issued Tribunal order”, and not a discreet and different inquiry into alleged 2006 breaches of the Act with consequences and costs in 2006, he erred in law as well.
41While it is unnecessary, because of our disposition of this appeal, to explore in any further depth Member Fellman’s observation that “[a]ll evidence must be submitted to the Tribunal before or during the course of the hearing”, we note that the current Landlord and Tenant Board, “Review of an Order: Interpretation Guideline #8”, interpreting Rule 27.2 relating to requests to review, specifically contemplates that “new evidence” may be considered on a review hearing.
Conclusion
42The state of the transcript of the May 16, 2006 hearing is entirely unsatisfactory as it is replete with references to “inaudible”. In this regard, we add our voices to what is becoming an altogether too common refrain from this Court respecting the state of the record of ORHT proceedings: Cymbalski v. Alcorn, [2006] O.J. No. 971 (Div. Ct.) at para. 8-19; Manpel v. Greenwin Property Management, [2005] O.J. No. 3079 (Div. Ct.) at para. 9.
43Because of the inability of the appellants to fully present relevant evidence to the tribunal on account of the tribunal’s rulings, and having regard to the state of the transcript, we are not in a position to do anything other than remit the matter to the ORHT with this judgment pursuant to s. 196(4)(b) of the Act.
44These proceedings have had a protracted history. An early date should be set for adjudication and it is expected that the parties will make full use of the tribunal mediation services.
45If counsel are unable to agree on the issue of costs, brief costs submissions should be exchanged and filed with the Court no later than December 5, 2007.
CUNNINGHAM, A.C.J.
HILL J.
Released: November 27, 2007
COURT FILE NO.: DC-06- 00080338-0000
DATE: 20071127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Cunningham, A.C.J., Meehan and Hill JJ.
B E T W E E N:
CHARLENE WAMBOLDT and JODY WAMBOLDT
Tenants
(Appellants in Appeal)
- and –
WILLIAM WELLMAN
Landlord
(Respondent in Appeal)
REASONS FOR JUDGMENT
Released: November 27, 2007
- With the death of the Honourable Mr. Justice Michael Meehan prior to the giving of this decision, the remainder of the presiding panel releases its decision pursuant to s. 123(3) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended.