COURT FILE NO.: 353/07and 371/07
DATE: 20080418
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, MOLLOY AND LINHARES DE SOUSA JJ.
B E T W E E N:
THOMAS STANOULIS, o/a T. Stanoulis & Sons
Landlord
(Respondent)
- and -
LYKAKIM, HOLDINGS LIMITED, DOUGLAS ELLIOTT, LYNN ELLIOTT, KATY ELLIOTT and KIM ELLIOTT
Tenants
(Appellants)
Ronald B. Moldaver, Q.C., for the Landlord (Respondent)
Nancy J. Tourgis and
Matthew Valitutti, for the Tenants (Appellants)
HEARD at Toronto: April 18, 2008
MOLLOY J.: (Orally)
[1] This is an appeal from two decisions of Member Stanwick of the Landlord and Tenant Board. There had been a hearing before the Member over the course of three days in April and May, 2007. At issue was an application by Thomas Stanoulis, as landlord, seeking an order evicting the Elliott family who he alleged were tenants in his house on Yonge Blvd. in Toronto. The stated grounds for eviction were that the landlord required the property as a residence for his son, Nick Stanoulis.
[2] The Elliotts countered with an application for a determination that the Landlord and Tenant Board had no jurisdiction because there was no landlord and tenant relationship between the parties, but rather that they occupied the premises as licensees.
[3] There was oral argument on the first hearing date on April 17, 2007. On April 26, 2007, there was a full day of evidence and on May 23, another full day of evidence. The hearing was then adjourned for the parties to make written submissions to the Member.
[4] Prior to the Member delivering her decision, counsel for the Elliotts brought a motion to submit new evidence, which motion was received by the Board on July 11, 2007. On that same day, their Notice of Motion was returned to them with the filing stamp crossed out under cover of a letter from the Co-ordinator of Client Services at the housing tribunal stating in part:
“Member Stanwick has asked the submissions be returned to both parties. The documents have not been accepted or placed on the file, nor have their contents been reviewed for additional facts or evidence in these matters. The Member has advised that her decision will be based solely on the evidence before her on June 4, 2007, the deadline date for filing post hearing submissions set by her at the last hearing held on May 25, 2007.”
[5] This order is the subject of the first appeal by the tenant. The Member delivered a decision in writing dated July 30, 2007, finding that there was a landlord and tenant relationship between the parties and granting the landlord’s application for a termination of the tenancy. That order is also the subject of the second appeal by the Elliott family.
[6] In the circumstances of this case, it is not necessary for this Court to get into the merits of the positions taken by the parties before the tribunal. Indeed, it is not even possible to deal with the merits.
[7] The first difficulty is the fact that due to some kind of malfunction, there is no recording of any of the evidence from the hearing on May 23, 2007. The missing evidence includes part of the cross-examination of Mr. Elliott, the re-examination of Mr. Elliott, all of the testimony of Mrs. Elliott and the reply evidence of Nick Stanoulis.
[8] The necessity of a transcript was made clear to the Board by both parties during the course of the hearing. They stated they did not want to proceed without a transcript. The failure to provide complete tapes or transcripts makes it impossible for us to consider the merits of the appeal. Even where the appeal is solely on a question of law, these issues cannot be determined in a vacuum. A grounding in the evidence is essential. It is not possible in this case to adjudicate the appeal. See Cymbalski v. Alcorn [2006] O.J. No. 971 (Div. Ct.) and cases referred to therein.
[9] This is not a situation where there is an adequate factual analysis in the decision itself to compensate for the lack of a transcript, as was found in Collett v. Piasecki 005 Carswell Ont. 4977 (Div. Ct.).
[10] Indeed, we find the reasons of the Member in this case to be inadequate. The requirement for meaningful reasons is part of the tribunal’s duty to act fairly and in accordance with the principles of fundamental justice. See Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Gray v. Ontario Disability Support Program Director (2002), 212, D.L.R. (4th) 353, 59 O.R. (3d) 364 (C.A.).
[11] As was stated by the Ontario Court of Appeal in Gray at para. 22 (adopting the reasoning of the Federal Court of Appeal in Via Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25)
“The obligation to provide adequate reasons requires more than conclusions. The decision-maker must set out its findings of fact, the principle evidence upon which those findings were based and the reasoning process on the major points in issue and main relevant factors.”
[12] From the reasons of the Member in this case, it is impossible to determine what legal test was used by the Member in finding that there was a landlord and tenant relationship, which is an issue going to jurisdiction. Further, there is no factual analysis, no findings of credibility and no indication of what evidence was taken into account on any issue before the Member. Her reasons are merely conclusory. Meaningful appellate review is impossible.
[13] In the words of Matlow J. delivering the unanimous decision of this Court in Fisher v. Moir, [2005] O.J. No. 4479 at paragraph 13:
“Accordingly for the reasons stated above, with respect to the first of the two orders in appeal, we conclude that the failure of the Tribunal to record the hearings and make available a transcript or other reliable evidence and its further failure to give full and complete reasons for its decision have made it impossible to perform our ultimate appellate function and have left us with no proper alternative but to grant the relief set out in our endorsement above. This case is yet another example of how important an examination of the evidence can be for the purpose of an appeal even for the determination of questions of law.”
[14] Given this result, it is not necessary for us to deal with the other appeal with respect to the motion for fresh evidence. However, we do note that the procedure of crossing out a filing stamp on a Notice of Motion and sending it back to the parties with a staff letter simply saying it is past the deadline for submissions, is not an appropriate exercise of judicial discretion. The parties were entitled to some measure of reasons from the Member for dismissing the motion.
[15] In the result, the appeal is granted. The matter is remitted back to the Board for a new hearing before a differently constituted Board.
CARNWATH J.
[16] On the motion to quash, there will be costs to the appellant fixed at $5,000 inclusive. No order as to costs on the appeal. Paragraph 4 of the Order of Brockenshire J. is to continue until
the disposal of the matter by the Board. The landlord is to have the right to inspect the premises during daylight hours on 24 hours notice.
___________________________
MOLLOY J.
___________________________
CARNWATH J.
___________________________
LINHARES DE SOUSA J.
Date of Reasons for Judgment: April 18, 2008
Date of Release: May 2, 2008
COURT FILE NO.: 353/07 and 371/07
DATE: 20080418
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, MOLLOY AND LINHARES DE SOUSA JJ.
B E T W E E N:
THOMAS STANOULIS, o/a T. Stanoulis & Sons
Landlord
(Respondent)
- and -
LYKAKIM, HOLDINGS LIMITED, DOUGLAS ELLIOTT, LYNN ELLIOTT, KATY ELLIOTT and KIM ELLIOTT
Tenants
(Appellants)
ORAL REASONS FOR JUDGMENT
MOLLOY J.
Date of Reasons for Judgment: April 18, 2008
Date of Release: May 2, 2008