COURT FILE NO.: 76/07
DATE: 20080520
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ferrier, pitt and molloy jj.
B E T W E E N:
NAVIN MEHTA
Appellant
- and -
SUKHJEET KAUR NATT
Respondent
Self Represented
Self Represented
HEARD at Toronto: May 20, 2008
FERRIER J.: (Orally)
[1] The appellant/tenant, Navin Mehta, appeals from the order of the Landlord and Tenant Board, dated January 15, 2007, dismissing the tenant’s application for a rent reduction.
[2] An appeals lies to this Court on a question of law alone. The standard of review is correctness. The decision below is based on a finding that the rent being paid was in reference to the house only and that the garage was provided free of charge. This finding represents a misapprehension of the evidence, especially the very terms of the lease itself. It is a palpable and overriding error and as such constitutes an error in law.
[3] In the lease, the premises are described as 2154 Codlin Crescent. Unquestionably, the lease includes at least some property around the house. The lease contains a provision that the lessee agrees that the lessor shall be using the backyard for parking their trucks and trailers. This clearly shows that the subject of the lease is more than simply the house. Furthermore, the lease provides that the lessee shall have access to the garage and will be using the garage. Furthermore, the lessee has the right to use the backyard up to the front of the garage.
[4] We also note that in an earlier finding by the Tribunal in a decision dated October 19, 2006, the Tribunal held that the rental property includes the house, the front yard, the backyard and the garage. In summary, these terms make it clear that the subject of the lease was more than merely the house.
[5] Concerning the backyard, the respondent acknowledges that the extent of the backyard available for use of the tenant has been reduced as a result of the fencing built by the landlord. This concession is the opposite of the finding by the Tribunal.
[6] The fact that the backyard has been reduced, and the fact that the garage size has been reduced, does not necessarily mean that there should be an abatement of rent in all of the circumstances as they existed following the changes made by the landlord.
[7] The Tribunal, in view of its interpretation of the lease made no finding as to whether an abatement would otherwise be appropriate and how much, if any, of a rent reduction would be appropriate.
[8] For the foregoing reasons, we remit the matter back to the Board for a new hearing before a Board differently constituted.
COSTS
[9] Costs fixed at $650.00.
FERRIER J.
PITT J.
MOLLOY J.
Date of Reasons for Judgment: May 20, 2008
Date of Release: May 22, 2008
COURT FILE NO.: 76/07
DATE: 20080520
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ferrier, pitt and molloy jj.
B E T W E E N:
NAVIN MEHTA
Appellant
- and -
SUKHJEET KAUR NATT
Respondent
ORAL REASONS FOR JUDGMENT
MOLLOY J.
Date of Reasons for Judgment: May 20, 2008
Date of Release: May 22, 2008