COURT FILE NO.: 142/07

DATE: 20080514

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: VICTOR OPARA (Appellant) – and – SHAWN A. COOK (Respondent)

BEFORE: JENNINGS, PITT, and MOLLOY, JJ.

COUNSEL: Both parties self-represented

DATE HEARD: May 12, 2008

ENDORSEMENT

1Victor Opara appeals from a decision of the Ontario Landlord and Tenant Board dated February 28, 2007, which dismissed Mr. Opara’s application for a refund of the $600.00 deposit he had provided to Shawn Cook upon agreeing to rent a room from Mr. Cook in a rooming house.

2Prior to the argument of the appeal itself, Mr. Opara moved for admission of fresh evidence on the appeal. Mr. Cook consented to the admission into evidence of photographs taken of the subject property. Solely as a result of that consult, we have admitted the photographs into evidence.

3Mr. Opara has withdrawn the balance of his motion. With respect to the affidavit from a person who helped him move his belongings, Mr. Opara accepted that this was an irrelevant issue on the appeal.

4The appeal from the Tribunal decision is dismissed.

5An appeal lies to this Court from a decision of the Tribunal solely on a question of law: Tenant Protection Act, 1997, S.O. 1997 c. 24, s. 196. We find no error of law in the Tribunal’s decision. Further, there is no breach of procedural fairness or natural justice to otherwise warrant setting aside the Tribunal decision.

6A tenancy agreement came into effect on December 11, 2006 upon the agreement being reached between the parties and the deposit being paid. There is no real dispute that such an agreement was reached. Mr. Opara purported to unilaterally terminate that agreement on December 13, 2006. The only real issue is whether he was entitled to do so. In this regard, ss. 9(1) and 9(2) of the Tenant Protection Act are irrelevant as they deal only with when the “term” of the tenancy commences. This has nothing to do with whether either party can rescind the agreement prior to the date of occupancy. Ordinary rules of contract law apply. There is no unilateral right to rescind a contract that has been duly entered into by the parties simply because the effective date of the contract has not yet been reached.

7The post-dated cheque issue is irrelevant to whether the contract was properly rescinded. According to the evidence Mr. Opara gave before the Tribunal, Mr. Cook had suggested post-dated cheques as a convenience as he was going to be traveling abroad during the term of the tenancy. Mr. Opara had reservations about that and advised Mr. Cook he would think about it. Nothing had been decided between them about that and it did not form the basis for Mr. Opara’s rescission of the tenancy agreement. The mere request for post-dated cheques did not render the agreement void. Post-dated cheques were not a requirement of the original agreement made between Mr. Opara and Mr. Cook, and there was no evidence that Mr. Cook ever made the provision of post-dated cheques a condition of the contract. Further, there was no evidence that Mr. Opara ever told Mr. Cook he would not provide post-dated cheques. Mr. Opara purported to terminate the contract without any reference to the post-dated cheques.

8Mr. Opara argues that the Tribunal erred in law by finding that Mr. Cook was legally entitled to require post-dated cheques. The Tribunal made no such ruling. The portion of the transcript relied upon by Mr. Opara as supporting that submission was not a legal ruling by the Tribunal Member. It was merely a question posed to Mr. Opara about whether he had never heard of people paying rent by post-dated cheques. There was no error of law with respect to the illegality of post-dated cheques. This is an irrelevant issue.

9The Tribunal made a finding of fact that no material misrepresentation was made to Mr. Opara about the issue of security of the premises or neighbourhood. That is a finding of fact that was open to the Tribunal Member on the evidence before it, is dependent upon findings of credibility and is not subject to review by this Court.

10In coming to that conclusion, the Tribunal Member probably misapprehended two aspects of the evidence. First, the Tribunal Member referred to the rented premises as being the main floor of the subject property; in fact, it was merely for one bedroom in the house. In our view, that was a simple misunderstanding by the Member and did not affect the result. The Member’s reference to the market rate for rents in Toronto (at paragraph 6 of his Reasons) was predicated on this mistaken belief that what was being rented was the main floor. Although this was not founded in the evidence it is not a significant point and not sufficient to vitiate the result.

11Second, the Member held that the landlord (Mr. Cook) testified that the premises were equipped with a security camera and a fence. This finding is not supported by the transcript. According to the transcript, the landlord merely stated during the course of submissions to the Tribunal, “I’ve installed security---there’s no risks. I’ve built fences around the property, all the windows are secure, the area is fine.” That does not support the statement made by the Tribunal Member as to Mr. Cook’s evidence. Mr. Opara advised that the transcript is wrong and that Mr. Cook did in fact say at the hearing that there was a security camera. Mr. Opara further asserts that Mr. Cook’s statement to the Tribunal about that was untruthful, and that there is no security camera. We do not need to decide whether the transcript is or is not accurate in this regard. There was no evidence from Mr. Opara before the Tribunal that this representation was ever made to him at the time of the negotiation of the tenancy agreement and it is therefore irrelevant whether or not Mr. Cook told it to the Tribunal at the time of the hearing. The issue was not whether there was a security camera, but rather whether Mr. Cook made a material misrepresentation to Mr. Opara that caused him to enter into the tenancy agreement. Accordingly, even if the Tribunal Member misapprehended Mr. Cook’s statement at the hearing, about which we make no finding, it has no material impact on the result.

12The Tribunal Member disbelieved Mr. Opara’s testimony that he terminated the tenancy agreement because he had relied upon the landlord’s misrepresentations as to the security of the building and neighbourhood. He made that finding after hearing Mr. Opara’s testimony and concluding that it was implausible in light of what a reasonable person would do in like circumstances. That was a conclusion that was open to the Tribunal Member, and not one with which we should or could interfere. The Tribunal Member did not apply a different standard of proof to Mr. Opara because he was a lawyer. However, a trier of fact is entitled to take into account the intelligence, experience and education level of a witness in determining whether that witness’s explanation for his unusual conduct is plausible. In our view, the Tribunal Member’s references to Mr. Opara’s profession during the course of the hearing did not go beyond that. There was nothing improper in those findings.

13Finally, Mr. Opara argues that the Tribunal Member breached principles of natural justice and procedural fairness by constantly interjecting and failing to give Mr. Opara a full opportunity to be heard. It is true, unfortunately, that the Tribunal Member did eventually tell Mr. Opara that he had heard enough and did cut him off. However, this was during the course of argument, and not during Mr. Opara’s evidence. Mr. Opara had the onus and the full opportunity to present all of his evidence with respect to the alleged representations made to him by the landlord and the basis upon which he asserted those representations to be untrue. Mr. Opara testified that he had asked the landlord about security and that the landlord had “assured me that the place was safe”, and that he hadn’t had any complaints. His evidence about why he considered those representations to be untrue was: he had seen the house on the first occasion at night and when he saw it later during daylight hours, he realized that the apartment building across the street was run down; also that day, he saw the police on the street speaking to a woman whom he was advised was a prostitute; and some (unidentified) friends told him that this was a “security-prone area”. Therefore, he said, he terminated the agreement. He then concluded by saying, “So, that was essentially what happened.” (Transcript pp. 2-5)

14It was only after this that the Tribunal Member interrupted to ask Mr. Opara a few questions. Mr. Opara had the full opportunity to present his side of the case. The Tribunal Member did not believe that Mr. Opara terminated the agreement in good faith because of misrepresentations about the degree of security. He came to that conclusion based on Mr. Opara’s own testimony. While it would have been better if the Tribunal Member had allowed the hearing to evolve in the usual course, with evidence from the landlord and the opportunity for Mr. Opara to cross-examine, the failure to do so in these circumstances and without any objection by Mr. Opara (who is a lawyer) does not amount to a breach of natural justice sufficient to vitiate the entire proceedings or undermine the findings of the Tribunal Member. We note that after the landlord had made the statement about the security issue, as well as a statement that his belief was that the real reasons Mr. Opara terminated the lease was because of a dispute about the amount to be paid for a separate deal they had made about moving some of Mr. Opara’s office equipment, the Tribunal Member asked Mr. Opara if there was any dispute regarding the facts. Mr. Opara did respond with respect to the facts stated by Mr. Cook about the moving issue (which is irrelevant), but said nothing about the security issue.

15In the result, we find no error of law and no breach of natural justice or procedural fairness. Accordingly, Mr. Opara’s appeal is dismissed.

16The successful party on an appeal is normally entitled to costs. We see no reason to depart from the usual rule in this case. Mr. Cook did not file material and was not represented by counsel. However, he is entitled to some compensation for the amount of time he was required to spend in court dealing with this matter. He is a contractor and had to interrupt a job in order to be present in court. Although he reasonably expected the case would take two hours since it was listed first on the court’s docket and was scheduled to take that amount of time, Mr. Opara failed to appear for court on time, with the result that we started the second case on the list first. Therefore, Mr. Cook was in fact kept in court for practically the entire day, which was a loss to him of the value of his time as well as the costs incurred on his job site, some of which were thrown away.

17On the other hand, we do not accept that the cost of his flight back from Hong Kong is recoverable, as he was scheduled to return around now in any event. Further, we recognize that what is at issue is a deposit of $600 and the amount of costs must to some extent reflect that. Accordingly, costs are fixed in the amount of $500.00 payable by Mr. Opara to Mr. Cook in 30 days. There shall be no costs of the first appearance before this court on March 31, 2008, for which Mr. Cook was not properly served and did not attend.