CITATION: Ansari, et al v. JIHC Crescent Village, 2012 ONSC 1953
DIVISIONAL COURT FILE NO.: DC-11-000393-00
DATE: 20120413
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., MATLOW AND BALTMAN JJ.
B E T W E E N:
YASMEEN ANSARI and GAMAL AMER
Paul Mazzeo for the Appellants
Tenants (Appellants)
- and -
JIHC CRESCENT VILLAGE
Suzanne Johnson for the Respondent
Landlord (Respondent)
HEARD at Newmarket: March 5, 2012
ENDORSEMENT
CUNNINGHAM A.C.J.
[1] This is an appeal of the Order of the Landlord and Tenant Board (the Board), dated October 14, 2011, wherein the Board terminated the tenancy between the Appellants and the Respondent.
[2] The Appellants, with whom their son resides, are of very limited means. Yasmeen Ansari suffers from numerous health conditions preventing her from being employed and her son suffers from Klinefelter’s Syndrome.
[3] On August 31, 2010, the Appellants were notified by the Respondent that they were no longer eligible for geared-to-income rent. This apparently had to do with the Appellants alleged failure to report the ownership and sale of real estate as well as misrepresentation of their financial position. Not only were they advised that they were ineligible for this rent, but also that they had received a subsidy overpayment of $79,349.
[4] The Appellants asked the York Region Community and Health Services Department (the Region) for an internal review. In doing so, the Appellants submitted documents stating that the property in question had been owned by Ms. Ansari in trust for her children. Indeed, in 2005, the Social Benefits Tribunal accepted this position and did not alter Ms. Ansari’s ODSP eligibility.
[5] The internal review was unsuccessful and the original decision upheld. The Respondent then applied to the Board for an order terminating the tenancy. It is this order that is the subject of this appeal.
[6] Decisions of this Board may only be appealed as matters of law to the Divisional Court. The standard of review, therefore, is one of correctness.
[7] One issue raised by the Appellants before the Board was that of harassment by the Respondent’s property manager towards Ms. Ansari. The Respondent was aware of this issue as the Appellants had raised it in documents before the Region. The Board took the position that it would not consider this issue as it was not raised as a ground two weeks before the hearing as required by the Board in directions given when the matter was adjourned on August 23, 2011.
[8] While we agree that tribunals ought to be able to control their processes, s.82 of the Residential Tenancies Act is quite clear. The Board must permit the tenant to raise any issue that could be the subject of an application made by the tenant under the Act. Accordingly, by failing to consider this issue, the Board erred. The appeal is allowed and the order of the Board is set aside.
[9] The respondent shall pay the Appellant’s costs which we fix at $3,000 all inclusive.
Cunningham A.C.J.
Matlow J.
Baltman J.
Released:
CITATION: Ansari, et al v. JIHC Crescent Village, 2012 ONSC 1953
DIVISIONAL COURT FILE NO.: DC-11-000393-00
DATE: 20120413
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., MATLOW AND BALTMAN JJ.
B E T W E E N:
YASMEEN ANSARI and GAMAL AMER
Respondents
- and –
JIHC CRESCENT VILLAGE
Appellant
ENDORSEMENT
Released: April 13, 2012