COURT FILE NO.: 35/08

DATE: 20090707

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

NISTAP DEVELOPMENT CORPORATION

Appellant

- and -

JOHN MCINTYRE and MARIA MOURYAS

Respondents

Yan David Payne, for the Appellant

No One Appearing

HEARD at Toronto: July 7, 2009

jennings J.: (Orally)

1This is an appeal from the decision of Deputy Judge Libman dated December 14, 2007, holding that there was an oral agreement between the parties to terminate the tenancy at issue in this appeal and that the defendants were entitled to offset the costs they incurred for work done on the premises against any rent owing.

2The appeal was called on for hearing at 9:00 a.m. this morning. Counsel for the appellant appeared, the respondents did not appear.

3I am satisfied they were served properly with the materials to be used on the appeal including the Notice of Appeal, Factum, Compendium and Appeal Book, and that they were given notice by the this Court of the appeal’s date.

4I was not satisfied that effective notice had been given to them by the Court as to the starting time of 9:00 a.m. as opposed to 10:00 a.m., the Court officials having been unable to reach them by telephone at the number provided by the respondents to the Court. I accordingly held the matter down until 10:30 a.m. No one appeared for the respondents and they did not themselves appear. I proceeded to hear the appeal.

5Briefly stated, the facts are that in February 2001 the parties entered into a written lease for residential premises at 1955 Victoria Park Avenue for a monthly rent as found by the trial judge of $1,030.00 which included the space for the parking of one car.

6The parties apparently agreed that an extra parking space would be made available to the tenants for an increase in rent of some $45.00 per month but the trial judge found there was no written memorandum of that variation of the lease and declined to give effect to it.

7The lease terminated at the end of a year and the tenants remained in possession on a month-to-month basis. Some time in February 2004 the tenants moved out of the premises. The evidence was that at that time there was some money owing for the January rent and of course nothing was paid thereafter.

8The trial judge found that although no written notice of termination was given to the landlord, there was an oral agreement as alleged by the tenants permitting them to leave without proper notice in return for a waiver of a claim for costs that they incurred to do some repairs on the premises.

9In my opinion, that finding was impermissible and constitutes an error in law.

10The Tenant Protection Act, 1997, the legislation pertaining to this matter, is a complete code of the rights between the landlord and the tenant. Section 2(1) of the Act provides in part that the statute applies to rental units in a residential complex which was the case in the matter before me despite any other Act and despite any agreement or waiver to the contrary.

11Section 43(1) of the statute provides that a notice to terminate a tenancy shall be in a form approved by the Tribunal. This Court has held in the case of George V. Apartments Ltd. v. Cobb, [2002] O.J. No. 5918, that written notice is mandated by the statute and no other notice can suffice.

12There is no dispute that the tenants did not comply with the requirement to give written notice. The finding of the trial judge of an oral agreement containing notice was not open to him and on that ground the appeal must be allowed.

13The record is sufficient in my opinion for me to give judgment now without referring the matter back and putting the parties to the expense of a new hearing.

14The claim presented to the Court was in the net amount of $6,095.00 after deducting from it a claim for repairs to the premises in the sum of $250.00 which was not pursued at trial.

15The trial judge accepted the amount of the claim saying at page 27 of the transcript that he had not heard any defence disagreeing with the amount that was being claimed. That being so, it is open to me on this appeal to grant judgment to the appellant Nistap in the sum of $6,095.00.

16Accordingly, the judgment of the trial judge is set aside and in place of it will go, judgment for the plaintiff in the sum that I have mentioned of $6,095.00. Counsel has stressed the importance of this decision to the industry and I accept that his concerns are legitimate. Nevertheless, his claim for costs in the sum of $5,000.00 is, under the circumstances and the amount involved, in my opinion, excessive. I fix costs at $3,750.00, inclusive to be payable by the respondents to the appellant forthwith.

___________________________

JENNINGS J.

Date of Reasons for Judgment: July 7, 2009

Date of Release: July 10, 2009

COURT FILE NO.: 35/08

DATE: 20090707

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

NISTAP DEVELOPMENT CORPORATION

Appellant

- and -

JOHN MCINTYRE and MARIA MOURYAS

Respondents