Court File and Parties

Citation: Collins v. Dellemonache, 2015 ONSC 6112 Divisional Court File No.: DC-15-633 Residential Tenancies Act File Nos.: SOT-53244-14 Date: 2015-10-02

Superior Court of Justice – Ontario Divisional Court

Re: Maxine R. Collins, Appellant And: Enzio Dellomonache, Respondent

Before: Swinton, Mullins and Fregeau JJ.

Counsel: Appellant in Person Respondent in Person

Heard at Hamilton: October 1, 2015

Endorsement

[1] The tenant appeals from the decision of a Board Member pursuant to the Residential Tenancies Act, S.O. 2006, c.17, given on December 29, 2014. The decision dismissed her application for an abatement of rent and compensation for moving costs.

[2] The tenant moved in to a rental unit on October 1, 2014. She had responded to an advertisement that the unit was suitable for a non-smoker. She had been assured by the landlord that other tenants in the building were required to smoke outside.

[3] On October 3 and 4, 2014, the tenant complained to the landlord about other tenants who were not complying with the requirement to smoke outside. The landlord responded to each complaint, advising that he had and would enforce the rule against smoking.

[4] In her email of October 4, 2014 to the landlord the tenant had indicated that she would move out and seek compensation should the smoking not stop. On October 7, she gave notice of her intention to vacate, citing the issue with second hand smoke and what she described as an absence of heat.

[5] Following the hearing of the tenant’s application the Board Member ruled that the tenant had not given sufficient time to the landlord to deal with the smoking issue and he dismissed her complaint of substantial interference with reasonable enjoyment of the premises. Relying on the tenant’s own evidence that the temperature in her unit was between 23 and 24 degrees Celsius, he also dismissed her other complaint of interference with the reasonable supply of an essential service.

[6] An appeal lies to this Court on a question of law, pursuant to section 210 of the Act. The standard of review, where, as here, the Tribunal is interpreting its own statute, is one of reasonableness.

[7] We note that there is no transcript of the proceedings. The Appellant relies upon jurisprudence that this is not fatal to an appeal such as this.

[8] The Member found that there was no evidence before the tribunal that the landlord had withheld or deliberately interfered with the reasonable supply of a vital service, namely heat. In so doing, we do not find that he disregarded relevant evidence, misapprehended facts or made unreasonable findings based on the evidence available to him. We also see no error in law in his determination on the evidence before him that the landlord had not interfered with the tenant’s reasonable enjoyment of her unit between October 1 and 7, 2014, in relation to the adequacy or not of his efforts to ensure that other tenants did not smoke inside the premises.

[9] Before giving the decision on the tenant’s application, the same Member had made an order terminating her tenancy on application of the landlord. The tenant complains in her factum that the order was based on improper ex parte communication between the landlord and the Member. Section 77 of the Act permits the landlord to apply ex parte to terminate a tenancy in circumstances where notice of termination has first been given by the tenant. There is no evidence that any communication other than an ex parte application pursuant to this section occurred here. We observe that this was not an argument she advanced in her oral submissions.

[10] The Appellant posits this appeal as a matter of the rights of non-smokers to a smoke free residential unit. She makes no complaint that the heat was inadequate, only that the radiators situate in her apartment were not hot or warm to touch. That tenants have an independently controlled heating system is, she submits, also an important issue of tenants’ rights.

[11] Our task is to determine whether there was an error in law by the Board. Our role is restricted to reviewing the decision of the Board rather than to address the broader issues advanced by the Appellant. We see no error of law in the Board’s decision and dismiss the tenant’s appeal. The landlord does not seek costs.

Swinton J.

Mullins J.

Fregeau J.

Date: October 2nd, 2015