Adijess v. Smilovici, 2013 ONSCDC 6019

CITATION: Adijess v. Smilovici, 2013 ONSCDC 6019

DIVISIONAL COURT FILE NO.: DC-12-472-00

DATE: 2013-10-15

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Hanna Smilovici, Tenant - and - Moshe Moses Adijess, Landlord

BEFORE: Matlow, Taliano, Wilton-Siegel JJ.

COUNSEL: Gary E. Shortliffe, for the Landlord (Appellant) Hanna Smilovici and Rita Smilovici, Self-Represented (Respondents)

HEARD: September 20, 2013, at Oshawa

ENDORSEMENT

[1] This is an appeal of an order dated August 9, 2012 of Member Jim McMahon (the "Member") of the Landlord and Tenant Board (the "Order") and of an order dated August 30, 2012 of Member Sylvia Watson (the "Reviewing Member") after a review of the Order (the "Review Order"). In this endorsement, the tenant, Hanna Smilovici, and the occupant, Rita Smilovici, her daughter, are treated collectively as the "Tenant". The appeal of the Order and the Review Order is pursuant to section 210(1) of the Residential Tenancies Act, 2006, S.O. 2006 c. 17, (the "Act") which provides that an appeal lies only on a question of law.

[2] The landlord, Moses Adijess (the "Landlord") gave notice to the Tenant pursuant to section 48 (1) of the Act terminating her tenancy on the ground that he, in good faith, required possession of the rented premises for his own personal residential occupation. At the time, the Landlord resided in another property owned by his father which his father wanted to sell for estate planning purposes, thereby necessitating the Landlord's move into the premises occupied by the Tenant.

[3] The Landlord claimed that his father later changed his mind, however, and advised the Landlord on January 18, 2012 that he had decided to give him the other property as his share of the assets being distributed to the family members. The father subsequently conveyed the other property to the Landlord on March 8, 2012.

[4] The Tenant moved out of the rented premises in December 2011. The tenancy terminated on January 31, 2012. At some point after January 18, 2012, the Landlord decided not to move into the vacated property and, instead, rented the premises to a new tenant at a higher rental than the Tenant had paid.

[5] The Member held that the Landlord failed to satisfy the onus on him to establish that the transaction with his father led to a good faith change of the Landlord's intention regarding the sale of the other property and, accordingly, the Member found that the Landlord had given the notice to the Tenant in bad faith.

[6] In reaching that conclusion, the Member held that there was "no evidence of anything that occurred between the Landlord and his father in this transaction". He also found that there was no evidence that showed that the Landlord genuinely intended to sell the property owned by his father, with the possible exception of the evaluation of the father's property that was not, however, followed by a listing,

[7] There is a reasonable basis in the evidence for all of these conclusions. There is therefore no error of law in the Member's conclusion that the Landlord gave the Tenant the notice in bad faith.

[8] On the review, the Landlord sought to introduce new evidence that pertained to the damage calculations in the Order. The evidence suggested that the Tenant vacated her new premises in July 2012 and, accordingly, her rent was not $2,400 per month for the entire 12-month period following vacation of the rental unit, as the Member had understood. The Reviewing Member held that it was not open to the Landlord to introduce new evidence on the basis that this evidence was, with appropriate diligence, available to him at the time of the hearing and furthermore, the Landlord had not requested an adjournment for the purpose of assessing the Tenant's evidence.

[9] This is an issue of procedural fairness which does not attract a standard of review. We would, however, reach the same conclusion if the standard of review were reasonableness.

[10] In our view the Reviewing Member erred in reaching her conclusion that the Landlord's evidence was inadmissible. The evidence was not reasonably discoverable with due diligence prior to the hearing before the Member as the Tenant was unwilling to provide the Landlord with her new address for personal reasons. The Member also acceded to her request at the hearing that the address not be shown to the Landlord. Accordingly, the Landlord was not able to respond to the Tenant's submissions on damages at the hearing. He was able to do so only after he discovered the address later. Before this Court, the Tenant acknowledged that she had moved out of her new address the day after the hearing before the Member without advising the Member of her intention to do so.

[11] Accordingly, the appeal is allowed in part and the Order and the Review Order, insofar as they address the Tenant's damages, are set aside. The determination of the quantum of the Tenant's damages is referred back for a re-hearing to a panel of the Landlord and Tenant Board, differently constituted.

[12] Written submissions with respect to costs may be exchanged by the parties and filed, in triplicate, at the office of this Court at Newmarket within one month from the date of the release of these reasons failing which no award of costs will be made.

Matlow J.

Taliano J.

Wilton-Siegel J.

Date: October 15, 2013