Court File and Parties
CITATION: Wrona v. Toronto Community Housing, 2014 ONSC 5743
DIVISIONAL COURT FILE NO.: 466/13
DATE: 20141001
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, D. BROWN AND RAMSAY JJ.
BETWEEN:
ANDREW WRONA
Appellant
– and –
TORONTO COMMUNITY HOUSING
Respondent
In Person
Orna Raubfogel, for the Respondent
HEARD at Toronto: October 1, 2014
Oral Reasons for Judgment
D. BROWN J. (orally)
[1] In April, 2013, the appellant, Mr. Andrew Wrona, was a tenant in a residential building owned by the respondent, Toronto Community Housing (the “Landlord”). In late April, 2013, Mr. Wrona asked the landlord to replace the large front burner on his stove and a broken plastic sidebar in his refrigerator. The landlord was not prepared to send service personnel into the unit because of a long-standing mould problem.
[2] Mr. Wrona hired a service person to replace the burner at a cost of $316.40; he ordered a replacement refrigerator retention bar which cost $46.94. He also obtained an air quality report dealing with the mould.
[3] That led Mr. Wrona to file applications with the Landlord and Tenant Board alleging that the landlord had violated s. 20(1) of the Residential Tenancies Act, 2006 by failing to repair the stove and the refrigerator and, as well, seriously interfering with the tenant’s enjoyment of the unit in violation of s. 22 of that Act. He sought compensation for the repairs and testing, as well as a rent abatement of $5,000.00.
[4] Those two applications came on for hearing before the Board on July 17, 2013. The Board member, Mr. Berkovits, released his reasons and order on September 23, 2013 dismissing both applications. The Board held that there were no breaches of the Act. The Landlord had tried to address Mr. Wrona’s reasonable concerns by offering an alternative unit in the same building that was mould free and with new appliances. The offer was made in November, 2012 and still was outstanding at the time of the hearing. The Board found that Mr. Wrona had acted unreasonably.
[5] Mr. Wrona has appealed to this Court asking that the Board’s order be overturned.
[6] Section 210(1) of the Residential Tenancies Act provides that “any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.”
[7] Decisions of the Board are entitled to deference and questions of law are reviewable on a standard of reasonableness unless they are questions of law of central importance to the legal system and outside the adjudicator’s area of specialized expertise: First Ontario Realty Corp. v. Deng, 2011 ONCA 54, para. 17.
[8] Mr. Wrona included in his Appeal Book some documents which were not filed in evidence before the Board. I accept that the exhibits filed before the Board were those attached to the affidavit of Joanna Kraczek sworn February 5, 2014. No motion has been brought for leave to file fresh evidence. Accordingly, on this appeal the Board’s order and Reasons must be assessed by reference only to the evidence which was before it at the hearing.
[9] Mr. Wrona, in his notice of appeal and factum, raised the following grounds of appeal:
(i) the Board failed to separate a side issue – the history of the mould infestation in his apartment – from the main issue concerning the alleged failure of the landlord to make needed repairs;
(ii) the Board failed to determine the validity of the landlord’s decision not to satisfy his maintenance request; and,
(iii) the Board failed to consider all the relevant documents.
[10] In his oral submissions, Mr. Wrona argued that the Board erred by making a finding of danger from the mould without evidence from the Landlord, by failing to consider the Occupational Health and Safety Act, and by misinterpreting s. 20(1) of the Residential Tenancies Act.
[11] It is evident that the first two grounds of appeal are really asking this court to review findings of fact made by the Board or raise, at most, mixed questions of fact and law. Neither ground engages a pure question of law.
[12] As to the first ground of appeal that the Board failed to separate the history of the issue of the mould infestation from the main issue, it is worth observing that it was Mr. Wrona, in his evidence-in-chief, who initially placed the history of the mould issue before the Board, as can be seen from the evidence starting at page 11 of the Transcript of the July 17, 2013 hearing. Also, the presence or absence of mould in the unit was an issue material to the question of whether the landlord acted reasonably in deciding not to send service personnel into the unit, as well as the reasonableness of the landlord’s offer of alternative accommodation to Mr. Wrona to enable the remediation of the mould problem in his unit.
[13] As to the second ground of appeal, the Board member reviewed the evidence and in paragraph 11 of his Reasons specifically reached a conclusion, based upon the evidence, concerning the validity of the landlord’s decision not to send a service person into the unit. The Board’s conclusion regarding the reasonableness of the decision by the landlord turned upon an assessment of the specific facts concerning the extent of the mould infestation in the unit at the time and the landlord’s offer of alternative accommodation. Although the Landlord did not lead any evidence on the extent of the mould at the hearing, Mr. Wrona filed with the Board a May 17, 2013 Air Quality Testing Report from Informed Decisions Property Inspection Services Inc., for which he had paid, which found that levels of two allergenic moulds were “slightly elevated” or “high”. That led the testing company to recommend professional mould remediation.
[14] Turning to Mr. Wrona’s third ground of appeal, a finding of fact in the absence of reliable evidence or a serious misapprehension of the evidence can constitute an error of law: Manpel v. Greenwin Property Management, 2005 25636 (Div. Ct.), para. 26. In his notice of appeal Mr. Wrona contended that he had provided the Board with copies of several Landlord’s notices of entry into the unit from 2009 until 2013 and those notices exposed a “distortion of the facts” made by the Board when it stated that the initial mould was eliminated, but then reoccurred in the fall of 2012. I accept that those notices were not filed in the record before the Board. Moreover, the transcript revealed that the Board heard evidence directly from the Landlord’s property manager, Mr. Warsame, that the mould had first appeared in 2002, was rectified, and then reoccurred in 2012: Transcript, pages 58 through to 60.
[15] In his factum Mr. Wrona also contended that the Board had failed to comment upon (i) email exchanges between the tenant and the Landlord, (ii) health and safety standard references, (iii) Landlord notices of entry, and (iv) a doctor’s note. Items (ii) and (iii) did not form part of the record before the Board, therefore the Board cannot be faulted for not commenting on them. As well, the law does not require a tribunal to comment in its reasons on every piece of evidence: Clifford v. Attorney General of Canada (2009), 2009 ONCA 670, 98 O.R. (3d) 210 (C.A.), para. 29. As the Supreme Court of Canada has emphasized, “administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons. For reviewing courts, the issue remains whether the decision, viewed as a whole in the context of the record, is reasonable”: Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405, para. 3. In this case, the reasons of the Board, when read in their entirety, disclosed clearly the path taken by the Board to reach its conclusion that the landlord had not violated s. 20 of the Residential Tenancies Act: it was the unreasonable conduct of Mr. Wrona which had prevented the Landlord from entering the unit to address the repairs, coupled with the willingness of the Landlord to move Mr. Wrona to another equivalent unit. Ample evidence supported those findings.
[16] In sum, in reading the reasons of the Board as a whole in light of the transcript of the hearing, there is no indication that the Board committed an error of law by making a finding of fact in the absence of reliable evidence or a serious misapprehension of the evidence. Its decision was a reasonable one, given the evidence before it.
[17] For those reasons, Mr. Wrona’s appeal is dismissed.
SWINTON J.
COSTS
[18] I have endorsed the Appeal Book, “This appeal is dismissed for oral reasons delivered today by D. Brown J. Costs to the respondent are fixed at $3,500.00, all inclusive.”
D. BROWN J.
SWINTON J.
RAMSAY J.
Date of Reasons for Judgment: October 1, 2014
Date of Release: October 6, 2014
CITATION: Wrona v. Toronto Community Housing, 2014 ONSC 5743
DIVISIONAL COURT FILE NO.: 466/13
DATE: 20141001
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, D. BROWN AND RAMSAY JJ.
BETWEEN:
ANDREW WRONA
Appellant
– and –
TORONTO COMMUNITY HOUSING
Respondent
ORAL REASONS FOR JUDGMENT
D. BROWN J.
Date of Reasons for Judgment: October 1, 2014
Date of Release: October 6, 2014