ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BROCKENSHIRE, LEDERMAN AND SWINTON JJ.
B E T W E E N:
AMBER KISSELL AND GINGERINA KISSELL
Tenant and Legal Guardian Respectively
(Appellants)
- and -
RADENKO MILOSEVIC AND VRM INVESTMENTS LTD.
Landlord
(Respondent in Appeal)
In Person
No One Appearing
HEARD at Toronto: May 26, 2008
swinton J.: (Orally)
1The appellants appeal from two decisions of the Ontario Rental Housing Tribunal, dated November 6, 2006. No one appeared for the respondent/landlord. The Tribunal ordered the appellants to pay certain sums for arrears of rent for units 10 and 11 at 12 Vaughan Road in Toronto.
2Pursuant to s.196(1) of the Tenant Protection Act, 1997, S.O. 1997, c.24, an appeal lies to this court on a question of law.
3Pursuant to s.86 of the Act, a landlord may apply to the Tribunal for an order for the payment of arrears of rent only if the tenant is “in possession of the rental unit” at the time of the application (see 1162994 Ontario Inc. v. Bakker (Ont. C.A. Docket C40655, May 21, 2004) at para. 2). Here, the applications were dated November 21 and November 23, 2005.
4Amber Kissell gave evidence that she had moved from unit 11 around mid-October, 2005. She produced evidence before the Tribunal of a new lease running from November 1, 2005, as well as receipts relating to rental of moving vans and storage space, which were dated in October, 2005. She testified that she returned the keys by the end of October.
5The Tribunal made no express finding with respect to the occupancy of unit 11 and, therefore, made no finding with respect to its jurisdiction to order arrears for unit 11.
6While the Tribunal made a finding, in the application relating to unit 10, that the Kissells were “seen” in the building as late as December 14, 2006 (clearly an error, as the relevant testimony was dealing with events in December, 2005), there was no express finding of occupancy relating to unit 10.
7The Tribunal concluded that December 14, 2006 [sic-2005] was the last date of the tenancy for unit 10. A similar finding was not made for unit 11. Given the failure to make a finding with respect to the occupancy of unit 11, particularly in light of Amber Kissell’s evidence about vacating the unit, the Tribunal erred in law in making an order for arrears of rent for unit 11. Therefore, the appeal is allowed with respect to unit 11 (File TSL 77840), the decision of the Tribunal is set aside, and the application is referred back to the Tribunal for a re-hearing, should the landlord seek to pursue the application.
8With respect to unit 10, the tenants presented evidence that the unit was not occupied after October 2005. The unit had been obtained for Mrs. Kissell’s mother, who never moved in. Amber Kissell gave evidence that she used the bathroom at times before moving in October.
9While the Tribunal accepted the evidence of the landlord’s witnesses that the Kissells were seen in the building in December 2005, the Tribunal failed to make a finding with respect to the actual occupancy or possession of unit 10 at the time the application was brought. There was evidence to support Mrs. Kissell’s position that occupancy had ceased after October 2005 - for example, pictures, the taxi driver’s note and the passage in the transcript of October 25, 2005, page 26 that reads:
MR. LEVENSON: All right. So, October is your last month’s rent?
MRS. KISSELL: For unit 10, that’s correct.
MR. LEVENSON: All right. Unit 10 …last month. Terminate the tenancy. That’s fine.
10The Tribunal having failed to make the necessary finding which respect to occupancy of unit 10 at the time of the application, the appeal in respect of File TSL 77873 must also be allowed. The decision of the Tribunal is set aside, and the application is remitted to the Tribunal for a rehearing, should the landlord seek to pursue the application.
BROCKENSHIRE J.
11Costs granted to the appellants in the amount of $2,500.00.
SWINTON J.
BROCKENSHIRE J.
LEDERMAN J.
Date of Reasons for Judgment: May 26, 2008
Date of Release: May 30, 2008
COURT FILE NO.: 600/06
DATE: 20080526
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BROCKENSHIRE, LEDERMAN AND SWINTON JJ.
B E T W E E N:
AMBER KISSELL AND GINGERINA KISSELL
Tenant and Legal Guardian Respectively
(Appellants)
- and -
RADENKO MILOSEVIC AND VRM INVESTMENTS LTD.
Landlord
(Respondent in Appeal)
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: May 26, 2008
Date of Release: May 30, 2008
