DIVISIONAL COURT FILE NO.: 185/14
TST-42753-13-RV
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
THEN, SACHS AND WARKENTIN JJ.
BETWEEN:
JEFF WOJCIK Tenant/Respondent
– and –
PINPOINT PROPERTIES LIMITED Former Landlord/Respondent
-and-
SAMION KEIZNERMAN and ZOYA ZELZER KEIZNERMAN Landlord/Appellant
Roma S. Mungol, for the Tenant/Respondent
Wade Morris, for the Appellants
HEARD at Toronto: May 10, 2016
SACHS J. (ORALLY)
1The appellants are appealing a review order from the Landlord and Tenant Board (the “Board”) dated March 21, 2014 pursuant to which the appellants were ordered to pay the respondent/tenant, $9,439.13 on account of their “bad faith decision” to issue a Notice to Vacate.
2Section 210 of the Residential Tenancies Act, provides a right to appeal decisions of the Board to the Divisional Court but only on questions of law. The appellants argue that they are appealing on a question of law. Specifically, they assert that the Board did not articulate the legal test for its finding of bad faith and the Board did not have the evidentiary record to make a finding of bad faith.
3With respect to the failure to articulate the legal test for its finding of bad faith, the appellants correctly concede that it is not an error of law for a tribunal to fail to articulate a legal test as long as it is clear from the tribunal’s reasons, read in light of the record before it, that the tribunal actually applied the correct legal test.
4In this case, it is clear that the Board found that the appellants caused the former landlord to give the respondent tenant a notice saying that they require the premises for their own use when this was clearly untrue. Furthermore, the Board found and it is uncontested, that once the appellants received vacant possession of the property they proceeded to rent it for more money than the respondent tenant had been paying. This conduct is conduct that is infused with some element of deceit, prompted by some interested motive which, as the appellants point out, is a necessary condition for a finding of bad faith.
5With respect to the argument that the Board did not have the evidentiary record to make a finding of bad faith, the appellants assert that the evidence before the Board suggested that what occurred was the result of a series of miscommunications. We agree that this was the appellants’ position before the Board. However, the Board did not believe or accept the appellants’ evidence in this regard. Instead, the Board chose to believe the evidence of the former landlord that his agent told him that the appellants wanted the property for their own use and the Board chose to draw the inference that the former landlord’s agent would have only got that information from the appellants’ agent, who in turn would have had no reason to act outside the scope of her authority. This inference was certainly available to the Tribunal, given what the Board found to be the contradictory evidence of the appellants and the appellants’ agent and the terms of the Agreement of Purchase and Sale, which required “vacant position”, a term that directly contradicts the appellants’ evidence that they were happy to have the tenant stay on.
6It is not the task of this Court to reweigh evidence or to second-guess the Board’s findings of credibility. The decision of a Board to accept or prefer the evidence of one witness over another does not raise a question of law as long as there is evidence upon which the Board could reasonably have reached its decision.
7In this case, as in the decision of Emerson v. Themer, the Board’s finding of bad faith was a factual finding or at best a finding of mixed fact and law. Therefore, it is not reviewable by this Court.
8For these reasons, the appeal is dismissed.
COSTS
9I have endorsed the Appeal Book, “This appeal is dismissed for oral reasons on behalf of the Court delivered by Sachs J. In our view, costs in the amount of $3,600 all in is fair and reasonable in the circumstances of this case, payable to the respondent tenant within 30 days of the decision of the Court.”
SACHS J.
THEN J.
WARKENTIN J.
Date of Reasons for Judgment: May 10, 2016
Date of Release: May 16, 2016
CITATION: Wojcik v. Pinpoint Properties Ltd., 2016 ONSC 3116
DIVISIONAL COURT FILE NO.: 185/14
TST-42753-13-RV
DATE: 20160510
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, SACHS AND WARKENTIN JJ.
BETWEEN:
JEFF WOJCIK Tenant/Respondent
– and –
PINPOINT PROPERTIES LIMITED Former Landlord/Respondent
-and-
SAMION KEIZNERMAN and ZOYA ZELZER KEIZNERMAN Landlord/Appellant
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: May 10, 2016
Date of Release: May 16, 2016
