Court File and Parties

CITATION: Elguindy v. Destaron Property Management et. al., 2016 ONSC 3662

DIVISIONAL COURT FILE NO.: DC-16-711

DATE: 20160603

SUPERIOR COURT OF JUSTICE – ONTARIO (DIVISIONAL COURT)

RE: EMAD ELGUINDY V. DESTARON PROPERTY MANAGEMENT AND LANDLORD AND TENANT BOARD

BEFORE: Gordon RSJ, Then J. and Fregeau J.

COUNSEL: The Appellant was self-represented. No one appeared for either Respondent.

HEARD: June 1, 2016

ENDORSEMENT

[1] The Appellant applied to the Landlord and Tenant Board for an abatement of rent on the basis that the Respondent Destaron Property Management (the Landlord) substantially interfered with his reasonable enjoyment of the rental unit.

[2] In a decision dated March 24, 2016 his application was dismissed on the basis that he did not qualify as a tenant and that the Board therefore had no jurisdiction to entertain his application.

[3] In its decision the Board correctly stated that under section 2(1) of the Residential Tenancies Act, 2006 a tenancy agreement can be oral, implied or in writing; however it found that “there is no evidence of even an implied agreement that the Interested Parties will be added to the tenancy as tenants”.

[4] In fact there was evidence before the Board of an implied tenancy agreement with the Appellant. The reasons of the Board indicate that: (1) The Appellant’s unchallenged testimony was that he had been paying the rent for the unit directly to the Landlord for more than two years; (2) The Appellant’s unchallenged testimony was that he had been residing in the unit for more than two years; (3) The Landlord was aware that he was residing there for more than two years, as it had accepted his rents and had approached him on numerous occasions to have him fill out an “occupancy form”. The failure to recognize this evidence as evidence of an implied agreement constitutes an error of law.

[5] Furthermore, the Board in reaching its decision, failed to consider the decision of the Ontario Court of Appeal in the case of Metropolitan Toronto Housing Authority v. Godwin et al (2002), 161 O.A.C. 57 which stands for the proposition that residential tenancy legislation is remedial with a “tenant protection focus” and that an expansive and liberal approach should govern its interpretation.

[6] With the Respondents choosing not to appear at this appeal, and the lack of any significant evidentiary record before us, we are unable to make a declaration finding the Appellant to be a tenant. However, it is appropriate that the matter be remitted back to the Landlord and Tenant Board for a new hearing on this issue before a different member of the Board. It is so ordered.

R. D. Gordon, RSJ.

E. Then J.

J. Fregeau J.

Date: June 3, 2016