Citation and Court Information
CITATION: Paul v. Wollen, 2015 ONSC 1458
DIVISIONAL COURT FILE NO.: 347/13
TET-37065-13 DATE: 20150304
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, HAMBLY AND M. EDWARDS JJ.
BETWEEN:
JENNIFER PAUL Tenant (Respondent)
– and –
MICHAEL WOLLEN Landlord (Appellant)
In Person Bryan D. Fromstein, for the Landlord/Appellant Brian A. Blumenthal, for the Landlord and Tenant Board
HEARD at Toronto: March 4, 2015
Oral Reasons for Judgment
SACHS J. (ORALLY)
[1] On this appeal the appellant/landlord raises two main issues: (i) that the Board erred in law as it applied the wrong burden of proof, and (ii) that the Board breached its duty of procedural fairness to the landlord.
[2] With respect to the first issue, it is clear to us that the Board applied the proper standard of proof. First, as the landlord concedes, the Board begins its analysis of the evidence by articulating the correct standard of proof and recognizing that the tenant bears the overall burden. At para. 2 of the Board’s Reasons, it states:
“The tenant proved, on a balance of probabilities, that the Landlord altered the locking system on a door giving entry to the rental unit or residential complex without giving the Tenant replacement keys on May 15, 2013, and that the Landlord withheld a reasonable supply of a vital service, care service, or food that the Landlord was obligated to supply under the tenancy agreement or deliberately interfered with the reasonable supply of vital service, care service, or food.”
[3] Although the Board did not repeat the phrase “the tenant proved on a balance of probabilities” at the beginning of each paragraph, the excerpt above indicates that the Board recognized the proper standard of proof and was alive to the fact that the tenant, as the applicant, bore the burden.
[4] Second, we disagree with the landlord’s submission that the Board accepted the tenant’s evidence because he rejected the landlord’s evidence. The Board found the landlord’s testimony “devoid of credibility” and rejected his version of events. The Board also rejected the landlord’s evidence that there was nothing of value in the rental unit on May 15, 2013 because it was, according to the Board, contradicted by the evidence of the landlord’s own witness, the photographic evidence and the tenant’s evidence, which the Board accepted. Instead, the Board accepted the evidence of the tenant, whom the Board found credible and whose testimony the Board found to be consistent with the other evidence. Essentially, the landlord is asking this Court to re-weigh evidence and to second-guess the Board’s findings of credibility. This is not our function.
[5] With respect to the alleged breach of procedural fairness, when read as a whole the transcript does not support a finding that the landlord was denied procedural fairness. The hearing involved self-represented parties and parties who were represented by non-lawyers. Continued interruptions were required as both parties tended to ask inappropriate questions, such as leading questions during examination-in-chief.
[6] In our opinion, the presiding Member of the Board tried hard to guide the parties towards the relevant issues in dispute, to explain the law where necessary and to explain hearing procedure, often by way of example. While the presiding Member was an active adjudicator asking questions of witnesses, in our opinion, the transcript reveals that the presiding Member gave due concern to the procedural rights of both parties and was careful to ensure that both sides had the opportunity to give evidence and test the evidence of the other party.
[7] For these reasons, the appeal is dismissed.
[8] I have endorsed the Appeal Book, “For reasons given orally by Sachs J. this appeal is dismissed. The Board is not seeking costs and neither is the tenant (who was self-represented and did not file any material).”
SACHS J.
HAMBLY J.
M. EDWARDS J.
Date of Reasons for Judgment: March 4, 2015
Date of Release: March 6, 2015
CITATION: Paul v. Wollen, 2015 ONSC 1458
DIVISIONAL COURT FILE NO.: 347/13
TET-37065-13 DATE: 20150304
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, HAMBLY AND M. EDWARDS JJ.
BETWEEN:
JENNIFER PAUL Tenant (Respondent)
– and –
MICHAEL WOLLEN Landlord (Appellant)
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: March 4, 2015
Date of Release: March 6, 2015