CITATION: Ahmed v. Krebs, 2015 ONSC 4753
DIVISIONAL COURT FILE NO.: DC-13-253-00
LTB File No.: TST-09492-10
DATE: 20150723
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, HARVISON YOUNG and LEDERER JJ.
B E T W E E N :
JAKIR AHMED
Tenant/Applicant
(Appellant)
– and –
HARVEY KREBS, 1198283 ONTARIO INC., and 210 OAK STREET APARTMENTS INC.
Landlord/Respondents
(Respondents in Appeal)
Dania Majid and Shibil Siddiqi
for the Tenant/Applicant (Appellant)
David Strashin, for the Landlord/Respondent, Harvey Krebs, 1198283 Ontario Inc. and 210 Oak Street Apartments Inc.
Brian A. Blumenthal, for the Landlord & Tenant Board
HEARD: July 23, 2015
LEDERER J.: (ORALLY)
[1] The landlord takes the position that the apartment was abandoned. The Residential Tenancies Act s. 2(3) sets a precondition for a finding of abandonment. There must be arrears of rent. Here, the landlord says the rent for September 2010 was not paid. There is a cheque dated September 1, 2010. It was made out to the landlord (210 Oak Street). It is for the value of the monthly rent ($750.00). It is stated on its face to be for rent and parking. It refers to the unit that was the subject of the tenancy. It was cashed by the landlord. The cheque was not executed by the tenant. It was made out by a third party. The tenant says this is a friend who acted to assist him by paying his rent for that month.
[2] The landlord asserts that this was a “new unauthorized tenant”. There is no evidence which would stand to support, much less establish, this position. This being so, there was no basis on which the landlord could properly deposit the funds the cheque represents. There is no other available explanation for cashing the cheque other than it was accepted as rent paid in respect of the tenancy in issue.
[3] For its part, the Landlord and Tenant Board identified whether the rent had been paid as an issue. It made an observation that there was inconsistency in the evidence of the witnesses called on behalf of the tenant. It referred to the evidence of the tenant that his rent had been paid by a “friend” and the statement of the landlord that the rent had not been paid. It made a categorical finding that the rent for September 2010 was not paid (see: Decision of the Landlord and Tenant Board, March 27, 2013, per Caroline King at paragraphs 9, 10 and 13).
[4] There is no determination of what evidence the Board relied on in coming to its conclusion. The cheque was cashed. It was accepted as rent. What flows from this is that the only reason the board member failed to accept the funds represented by the cheque as rent was her presumption that because they were paid by someone other than the tenant they could not stand as rent. There is no legal authority which supports the proposition that rent cannot be paid by a third party to the tenancy. Rent under the Residential Tenancy Act includes payments made “on behalf of the tenant” (see: s. 2(1)).
[5] For these reasons, we find the Board failed to meet the standard of reasonableness set by Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9 at paragraph 47. The reasons of the Board do not demonstrate the requisite level of justification, transparency and intelligibility. The rent having been paid, the precondition for the abandonment set out in the Residential Tenancies Act s. 2(3) has not been met. There were no arrears of rent. The unit was not abandoned.
[6] The appeal is granted. The matter is remitted to the Landlord and Tenant Board for consideration and determination of a remedy.
THEN J.:
[7] I have endorsed the appeal book as follows. This appeal is allowed for reasons by way of endorsement, read by Justice Lederer on behalf of the Court. The matter is remitted to the Board for consideration and determination of a remedy. Costs are awarded to the appellant in the amount of $5,000.00 all inclusive, and amount agreed to by counsel. The appellant does not seek costs against the Board and none are awarded.
THEN, J.
HARVISON YOUNG, J.
LEDERER, J.
Date of Reasons for Judgment: July 23, 2015
Date of Release: July 30, 2015
CITATION: Ahmed v. Krebs, 2015 ONSC 4753
DIVISIONAL COURT FILE NO.: DC-13-253-00
LTB File No.: TST-09492-10
DATE: 20150723
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, HARVISON YOUNG and LEDERER JJ.
B E T W E E N :
JAKIR AHMED
Tenant/Applicant
(Appellant)
– and –
HARVEY KREBS, 1198283 ONTARIO INC., and 210 OAK STREET APARTMENTS INC.
Landlord/Respondents
(Respondents in Appeal)
ORAL REASONS FOR JUDGMENT
LEDERER J.
Date of Reasons for Judgment: July 23, 2015
Date of Release: July 30, 2015