CITATION: Avcan Management Inc. v. David O’Laughlin, 2012 ONSC 537
DIVISIONAL COURT FILE NO.: 521/10
DATE: 20120120
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
A.C.J.S.C. CUNNINGHAM, JENNINGS AND GRAY JJ.
BETWEEN:
AVCAN MANAGEMENT INC.
Landlord
(Appellant)
– and –
DAVID O’LAUGHLIN and the tenants listed on Schedule “1” hereto
Tenants
(Respondents on Appeal)
Robert G. Doumani and Patrick J. Harrington, for the Landlord (Appellant)
Harry Yeon Cho, for the Tenants (Respondents on Appeal)
HEARD at Toronto: January 20, 2012
JENNINGS J. (orally)
[1] Avcan appeals the decision of Member Fahlgren of the Landlord and Tenant Board dated October 14, 2010, in which she ordered a rent abatement of ten percent for one year preceding the application, for 53 of Avcan’s tenants, finding that Avcan:
(a) failed to keep its building in a good state of repair, and
(b) interfered with the tenants reasonable enjoyment of the building
[2] All 53 individual applications were heard together. The rent abatement that Avcan had to assume amounted, we are told, to something in excess of $50,000.00.
[3] The City of Toronto inspected the building on three days in July, 2008, at the request of a local councillor. An order to comply was issued on August 8, 2008, requiring listed deficiencies in some of the common areas of the building to be remedied by August 29, 2008.
[4] In May, 2008, well prior to the inspection, Avcan notified its tenants that maintenance work would be carried out in the building. Avcan’s evidence was that of the 43 deficiencies subsequently noted in the City’s order, 38 were included in Avcan’s proposed maintenance plan.
[5] Avcan commenced the work, and it was proceeding to the satisfaction of the City’s inspector when these applications were commenced on November 12, 2008.
[6] The Member’s reasons are primarily conclusary. She appears to have accepted the deficiencies in the City’s Work Order as evidence of non-repair. She made no attempt to analyze the deficiencies, or their impact, if any, on the Tenants’ ordinary use and enjoyment of the building. Apparently none of deficiencies affected the ability of the tenants to reside in the leased apartments. Absent any analysis in her reasons, it is not possible for this Court to assess the propriety of the amount of the abatement ordered, or the alleged interference with the reasonable enjoyment of the premises.
[7] As an appeal from the Board to this Court is restricted to questions of law, the Board’s decisions have historically been reviewed on a standard of correctness. However, in the recent decision in First Ontario Realty Corp. Ltd. v. Deng, [2011] ONCA 54, the Court of Appeal held that where the question of law arises from the Board’s interpretation of its home statute, a standard of reasonableness should apply. In this case, the issue is whether the Member’s reasons demonstrated any analysis of the two sections of the Act the landlord is alleged to have breached or contained any explanation as a result of that analysis of the Member’s conclusion that the Landlord had breached its statutory obligations. This is a pure question of law and not a matter within the core expertise of the Tribunal. The standard of review on this appeal is correctness.
[8] Counsel for the respondent fairly concedes that the Board’s reasons are “less than perfect”. In our opinion, the Member’s reasons are woefully lacking in detail or transparency. They give no indication that the Board considered the requirements of either s.20(1) or s. 22 of the Residential Tenancies Act. It is not possible to determine what deficiencies the Board found to warrant the significant penalty it imposed.
[9] The Landlord had embarked upon a remedial program well before the Board became involved. In that sense it can be said to have been maintaining the fifty year old building, addressing most of the deficiencies subsequently itemized by the City.
[10] The Landlord was entitled to know why its evidence was rejected and why its efforts to maintain did not comply with s.20(1). Similarly, there is no meaningful analysis as to how the Landlord substantially interfered with the Tenants’ reasonable enjoyment of the premises. As acknowledged by the respondent, the failure to give adequate reasons is an error of law. The appeal must therefore be allowed.
[11] We are reluctant to put the parties to the additional expense required by a re-hearing. That notwithstanding, it is not apparent to us that the record before us is entirely devoid of a foundation for a finding of a breach of s.20(1) and that sole issue must be determined by a re-hearing before a new Board.
[12] The appeal is therefore allowed, and the matter referred back to the Board for re-hearing before a differently constituted panel, on the question of a breach of s.20(1) only.
[13] Costs fixed at $5,000.00 all inclusive.
A.C.J.S.C. CUNNINGHAM
JENNINGS J.
GRAY J.
Date of Reasons for Judgment: January 20, 2012
Date of Release: January 30, 2012
CITATION: Avcan Management Inc. v. David O’Laughlin, 2012 ONSC 537
DIVISIONAL COURT FILE NO.: 521/10
DATE: 20120120
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
A.C.J.S.C. CUNNINGHAM, JENNINGS AND GRAY JJ.
BETWEEN:
AVCAN MANAGEMENT INC.
Landlord
(Appellant)
– and –
DAVID O’LAUGHLIN and the tenants listed on Schedule “1” hereto
Tenants
(Respondents on Appeal)
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: January 20, 2012
Date of Release: January 30, 2012