ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Kent, Lederman and Swinton JJ.
B E T W E E N:
DPM2 LTD.
Landlord/Respondent
- and -
MITCHELL DUBROS
Tenant/Appellant
Jane L. Ferguson, for the Landlord/ Respondent
Sheila Cuthbertson, for the Tenant/ Appellant
HEARD at Toronto: November 28, 2008
Oral Reasons for Judgment
KENT J.: (Orally)
1We are concerned that the tenant was denied procedural fairness at the first hearing. Documentary evidence was received by the Board after completion of the formal hearing in the context of written submissions and neither the tenant nor his counsel were afforded any meaningful opportunity to test that evidence or to respond to it. That flaw in the initial hearing was not addressed in the reconsideration and review process. Failure to address procedural fairness issues constitutes an error in law.
2We are accepting and considering the new evidence, which is not controversial, in that it addresses municipal restrictions as to use of the premises both at the relevant time and in the future. Parties have a continuing obligation to act in good faith and to make relevant disclosure in a timely manner.
3The issues raised by the new evidence must be before the Board at the new hearing and we so direct.
4I endorse the Appeal Book, “For oral reasons delivered, the appeal is allowed. No order as to costs.”
KENT J.
LEDERMAN J.
SWINTON J.
Date of Reasons for Judgment: November 28, 2008
Date of Release: December 15, 2008
COURT FILE NO.: 216/07
DATE: 20081128
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Kent, Lederman and Swinton JJ.
B E T W E E N:
DPM2 LTD.
Landlord/Respondent
- and -
MITCHELL DUBROS
Tenant/Appellant
ORAL REASONS FOR JUDGMENT
KENT J.
Date of Reasons for Judgment: November 28, 2008
Date of Release: December 15, 2008