COURT FILE NO.: 202/07
DATE: 20091120
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
janet wilson, lederman and swinton jj.
B E T W E E N:
RAVINDER KHANNA
Landlord/Appellant
- and -
AUDREY BUCHANAN AND GLENNIS S. BUCHANAN
Tenants/Respondents
In Person
Claire Littleton, for the Tenants/ Respondents
HEARD at Toronto: November 20, 2009
SWINTON J.: (Orally)
[1] An appeal lies to this Court only on a question of law (see s.196 of the Tenant Protection Act, 1997, S.O. 1997, c.24, now s.210 of the Residential Tenancies Act, 2006, S.O. 2006, c.17).
[2] The Member of the Ontario Rental Housing Tribunal failed to address in her reasons significant evidence from the landlord - for example, the tenant’s obligation in the rental agreement to advise the landlord of “any damaged items” on moving into the premises and the failure of the tenant to do so; the absence of any mention of the landlord’s obligation to provide appliances in the rental agreement; the lack of any written complaint from the tenant until the letter delivered on January 5, 2006, followed by a complaint to the City on January 13, 2006; the evidence of prompt compliance to the complaint confirmed by the City on January 31, 2006; and the tenant’s acknowledgement of the list of improvements made by the landlord signed December 2005.
[3] This evidence is highly relevant to the determination of the tenant’s claim of the landlord’s breach of the obligation to maintain the premises. Failure to address this evidence is an error of law.
[4] In addition, the Tribunal failed to give any explanation for determining the quantum of the abatement of rent or the compensation. There were no invoices to support the compensation claim, and the amount of the abatement exceeded what the tenant requested. The reasons are insufficient to allow for meaningful appellate review. This, too, is an error of law.
[5] The difficulty for this Court is compounded in this appeal by the poor quality of the recording of the proceeding by the Tribunal, which has prevented the appellant from making a transcript available, despite efforts to do so.
[6] Therefore, the appeal is allowed, and the decision of the Tribunal is set aside. The matter is referred back for a new hearing.
[7] The Member of the Landlord and Tenant Board hearing the review proceeding acknowledged that there was no explanation given for the amount of the abatement. He did not otherwise deal with the sufficiency of reasons and the treatment of the evidence. At best, he said at page 4 of his reasons:
Although Member Steele did not explain how this amount was arrived at, I note that the Tenants claimed an abatement of $2,800.00 in the application form and the monthly rent was $1,200.00. It is conceivable that Member Steele had considered the evidence in this case and exercised her discretion in determining that a higher amount of rent abatement was appropriate.
[8] “Conceivable” is not good enough. In our view, the Member erred in not sending the matter back for rehearing. Therefore, his order is set aside as well.
[9] Given our conclusions, it is not necessary to deal with the other issues raised by the appellant.
JANET WILSON J.
[10] Costs of this appeal are payable to the landlord by the tenant in the amount of $400.00.
SWINTON J.
JANET WILSON J.
LEDERMAN J.
Date of Reasons for Judgment: November 20, 2009
Date of Release: December 4, 2009
COURT FILE NO.: 202/07
DATE: 20091120
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
janet wilson, lederman and swinton jj.
B E T W E E N:
RAVINDER KHANNA
Landlord/Appellant
- and -
AUDREY BUCHANAN AND GLENNIS S. BUCHANAN
Tenants/Respondents
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: November 20, 2009
Date of Release: December 4, 2009