CITATION: Spirleanu v. Transglobe Property Mgmt. Services, 2010 ONSC 5646
DIVISIONAL COURT FILE NO.: 282/09
DATE: 20101013
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HERMAN J.
BETWEEN:
ILIE SPIRLEANU
Tenant
(Appellant in Appeal)
– and –
TRANSGLOBE PROPERTY MGMT SERVICES
Landlord
(Respondent in Appeal)
Granville N. Cadogan, for the Appellant in Appeal
Martin P. Zarnett, for the Respondent in Appeal
HEARD at Toronto: October 13, 2010
ORAL REASONS FOR JUDGMENT
HERMAN J. (orally)
[1] The tenant seeks an order to set aside the dismissal of his appeal, extend the time to perfect the appeal and also seeks an order for re-entry into the premises.
[2] The decision under appeal was made by the Landlord and Tenant Board on May 5, 2009. The tenant sought a review of the decision at the Board. The reviewing board member confirmed the original order on the basis that there was no serious error. The reviewing board member indicated that the tenant had had an opportunity to explain the circumstances. The member had considered all the evidence and had applied his mind to that evidence.
[3] The tenant filed a Notice of Appeal in this Court on June 12, 2009. He has taken no steps to perfect that appeal. He was sent a notice from the Court dated June 14, 2010 that the appeal would be dismissed unless he took steps to perfect the appeal within ten days. He took no steps at that time. As a result, on July 6, 2010 his appeal to this Court was dismissed due to his failure to perfect the appeal. The tenant brought this motion after receiving a Notice to Vacate in September 2010. The eviction was carried out on October 1, 2010.
[4] An appeal lies to this Court on a question of law alone. The tenant argues that the Board made incorrect findings of fact. In his reasons, the Board Member said the following:
This hearing was adjourned twice, which should have given the Tenant a chance to bring more persuasive evidence regarding alleged payments by money orders. In the end, I did not find the Tenant’s evidence regarding alleged payments to the Landlord to be credible. It is incumbent upon the Tenant to sort out his banking situation and his relationships with the Landlord’s staff in order to make his methods of payment to the Landlord more orthodox and less cumbersome. Overall, too, I find no evidence that it is the Landlord’s staff that is making rental payments to the Landlord more difficult than they should be.
[5] These were factual findings that the Board was entitled to make. There is no suggestion that the tenant was denied a fair hearing. Indeed, the hearing was adjourned to allow him to marshall more evidence in support of his case.
[6] This appeal is, in my opinion, an attempt to relitigate the facts. In addition, I note the following circumstances which I think are relevant in considering whether I should exercise my discretion in this motion. The tenant’s assertions were reviewed by another member of the Landlord and Tenant Board who found no serious errors of fact. The tenant has taken no steps since filing this appeal in June 2009 to perfect the appeal. Further, the landlord claims that the tenant is currently in arrears and the tenant has not disputed this claim.
[7] In these circumstances, it is my opinion that the balance of convenience favours the landlord and the motion is therefore dismissed.
[8] Counsel for the tenant has brought to my attention that while I was preparing my decision, his client advised him that he was not in fact in arrears of rent. I had indicated in my reasons that the claim that he was currently in arrears of rent was not disputed. However, it appears that it is. Notwithstanding this new information, I am not going to change my decision because I remain satisfied that even without the factor of current arrears of rent, I should not exercise my discretion on this motion given the other circumstances.
[9] The landlord seeks costs in the amount of $750 inclusive. The tenant asks that no costs be sought, he is legally aided and a cost order against him would just create more hardship. In these circumstances, a cost order of $250 inclusive of HST and disbursements is made.
HERMAN J.
Date of Reasons for Judgment: October 13, 2010
Date of Release:
CITATION: Spirleanu v. Transglobe Property Mgmt. Services, 2010 ONSC 5646
DIVISIONAL COURT FILE NO.: 282/09
DATE: 20101013
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HERMAN J.
BETWEEN:
ILIE SPIRLEANU
Tenant
(Appellant in Appeal)
– and –
TRANSGLOBE PROPERTY MGMT SERVICES
Landlord
(Respondent in Appeal)
ORAL REASONS FOR JUDGMENT
HERMAN J.
Date of Reasons for Judgment: October 13, 2010
Date of Release: