COURT FILE NO.: DC-08-000040-00
DATE: 20090506
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Clive Preddie v. Heidi Graf
BEFORE: Mossip J.
COUNSEL: Clive Preddie, Appellant, self-represented
Naomi D. Loewith, for the Respondent
E N D O R S E M E N T
[On appeal from the Order of Deputy Justice W. Voroney of the
Superior Court of Justice, Small Claims Court, dated
April 30, 2008]
Nature of the Appeal
[1] The appellant, Clive Preddie ("Preddie") appeals the decision of Deputy Justice W. Voroney dated April 30, 2008 wherein she ordered Preddie to return to the respondent, Heidi Graf ("Graf") her $850.00 deposit.
Issues on Appeal
[2] The real issue on appeal is whether the Deputy Judge erred when she found that Preddie breached a fundamental term of the contract he entered into with Graf to lease a basement apartment when he decided she no longer was to have exclusive use of the laundry room in the basement apartment.
[3] A secondary issue is whether the appellant was denied a fair trial because of the way in which the trial was conducted by the Deputy Judge.
[4] A third issue raised by Preddie was that the Deputy Judge should have applied the Residential Tenancies Act, 2006 and deferred the issue between the parties to the Landlord and Tenant Board.
Standard of Review
[5] It is trite law that the decision of the Deputy Judge will not be overturned unless the Judge made a palpable or overriding error with respect to the facts or was wrong with respect to a question of law.
Relevant Background Facts
[6] The parties entered into an agreement wherein Graf would lease a basement apartment from Preddie.
[7] Upon viewing the apartment, a price was agreed to, being $850.00 per month. Graf testified at trial that this price was negotiated and included an extra amount for the exclusive use of the laundry facilities which were actually part of her apartment. Preddie testified that the exclusive use of the laundry room was never given to Graf. The issue of access to the laundry room by the upstairs tenant was a "privacy" issue, that he was entitled to resolve as he saw fit.
[8] When Graf discovered that Preddie was going to ensure her privacy by putting a wall/partition around the laundry facilities that impacted on Graf's basement apartment, she initially tried to negotiate a reduction in the rent. When Preddie would not agree to any rent reduction, Graf said she would not move in and she wanted her deposit of $850.00 back.
[9] The parties exchanged several e-mails. The Deputy Judge placed significant emphasis on one e-mail in particular which stated in part:
Thank-you for agreeing to $850.00 all-inclusive and keeping the laundry private for myself.
[10] Preddie never sent an e-mail contradicting this statement of Graf's.
Decision
[11] The Appeal is dismissed for the following reasons:
The respondent's factum at paragraphs 22 and 23 correctly sets out the law on the issue of the applicability of the Residential Tenancies Act to these facts. The facts in this case disclose that the issue was whether a tenancy agreement actually was concluded. The Small Claims Court has jurisdiction to determine that issue;
There was evidence upon which the Deputy Judge could find that exclusive use of the laundry room by Graf was a fundamental term of the agreement the parties intended to abide by. The Deputy Judge did not make an overriding or palpable error when she made that finding. Having found that Preddie altered a fundamental term of the tenancy agreement, the Deputy Judge correctly concluded that in law, Graf was entitled to a refund of her deposit.
The allegation that the Deputy Judge unduly interfered with the conduct of the trial caused me the most concern. It is completely understandable why Preddie felt his trial had been "high-jacked" by the Deputy Judge. There is a big difference between assisting self-represented parties in the Small Claims Court, and taking over the trial. In my view, the Deputy Judge went past assistance and should not have intervened to the extent that she did. Having said that, although a close call, I do not think the Deputy Judge's interventions in this case amount to a reversible error. Nor do I think the Deputy Judge's interventions overall amounted to an unfair trial or created a reasonable apprehension of bias.
Order
[12] The appeal is dismissed and the order of the Deputy Judge is upheld.
[13] The respondent shall send brief submissions on costs within 30 days and the appellant shall respond to those submissions within 60 days thereafter.
MOSSIP J.
DATE: May 6, 2009
COURT FILE NO.: DC-08-000040-00
DATE: 20090506
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Clive Preddie v. Heidi Graf
BEFORE: Mossip J.
COUNSEL: Clive Preddie, Appellant, self-represented
Naomi D. Loewith, for the Respondent
ENDORSEMENT
MOSSIP J.
DATE: May 6, 2009