COURT FILE NO.: 91/04
DATE: 20040625
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O’DRISCOLL, JENNINGS AND SWINTON JJ.
B E T W E E N:
DAVID F. HASS
Appellant/Tenant
- and -
JETEX INVESTMENTS INC.
Represented at first instance by its agent, 1041646 Ontario Ltd., of which Browning Property Services is a division
Respondent/Landlord
D. F. Hass, In Person
David S. Strashin, for the Respondent/ Landlord
HEARD: June 25, 2004
O’DRISCOLL J.: (Orally)
[1] The appellant/tenant, D. F. Hass, appeals from the order of a member (Mr. H. Fine) of the Tenant’s Review Tribunal (hereinafter the “Tribunal”) issued on February 3, 2004, and a further order of another Member (Ms. Donna McGavin), issued on February 19, 2004, denying the appellant’s request for a Review of the February 3, 2004 order. The appeal lies under the provisions of s.196(1) of the Tenant Protection Act 1997, S.O. 1997, c.24 (TPA).
[2] The Tribunal found that: (a) on November 28, 2003, the tenant gave notice to terminate his tenancy in the form (N9) prescribed by the Tribunal, specifying a termination date of January 31, 2004 and (b) on December 22, 2003, the landlord, in reliance on the tenant’s notice, accepted a rental application from a new tenant.
[3] The Tribunal also found that on January 6, 2004, the tenant wrote to the landlord requesting that he, the tenant, be allowed to delay his departure “for a month or two”. The landlord responded on January 7, 2004, advising that it could not accommodate the tenant’s request. On January 16, 2004, the landlord applied to the Tribunal for an order, ex parte, terminating the tenant’s tenancy, in accordance with his notice, to be effective January 31, 2004. The Tribunal granted the order requested ex parte pursuant to the provisions of s.76 of the TPA. On January 21, 2004, the tenant filed a motion to set aside the January 16, 2004 order to grant vacancy. The motion was determined by the Tribunal, (Mr. Fine) on February 3, 2004 and the tenant’s motion was denied. On February 18, 2004, the tenant requested a review of the order of Member Fine. On February 19, 2004, the application for review was denied by the Member, Ms. Donna McGavin.
[4] The suite under discussion in this appeal is #1406, where the tenant moved to in October 2003. The tenant had previously occupied #1606 from February, 2003.
[5] The right of appeal to the Divisional Court from the Tribunal is set out in the TPA, s.196(1):
“Any person affected by an order of the Tribunal may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.”
(5) “The Divisional Court may also make any other order in relation to the matter that it considers proper and may make any order with respect to costs that it considers proper.”
[6] In the order of the Tribunal, dated February 3, 2004, the member stated:
“8. I denied Mr. Hass’ request for an adjournment so that he might bring an engineer, a Mr. Patlik, who produced a report for the Landlord with respect to noise during a period in which Mr. Hass lived in a different apartment unit, #1606. Mr. Hass inferred that Mr. Patlik had avoided service of a summons to appear. After spending one half hour asking the Tenant how this person’s testimony, if it was exactly as the Tenant had hoped, and taken on a prima facie basis, would assist me in delaying or denying termination, I denied his request for an adjournment. This gentleman’s testimony could provide nothing with respect to the issues on which the success or failure of this motion turned.
I have considered s.84(1) and all the circumstances to determine whether to delay or deny termination, and find that discretionary relief is not appropriate in this instance. The Landlord would be seriously prejudiced if I extended the termination date, considering that they now have a new contractual obligation to Victor Finch, which came about as a result of Mr. Hass giving them a proper notice that he intended to leave.
I have considered section 84(2) of the Act and considered whether the Landlord is in serious breach under the Act or under the tenancy agreement, and whether or not the Landlord’s actions were motivated by the Tenant attempting to enforce his rights. I find that discretionary relief is not appropriate in this instance, that the Landlord is not in breach of the Act or of the tenancy agreement, and that the Landlord has acted properly and with good motives.
Frankly, the party acting badly and without prudence is Mr. Hass, who gave the Landlord a notice of his own free will and without duress, a notice that they then quite properly relied and acted on, and other than sending a letter requesting an extension of the date of termination, which was refused by the Landlord, Mr. Hass has ignored the potential consequences to himself and the Landlord.
It’s important to consider that it was not the Landlord who initiated the ending of this tenancy. It was the Tenant’s notice, the N9, which started the Landlord down a road that had them rely on the Tenant’s covenant in the notice. Filing the L3 application was simply a way to ensure that the Tenant would comply with his own notice.”
[7] We substantially agree with the following paragraphs of the factum of Counsel for the Landlord:
- “The Tribunal’s decision, particularly paragraphs 13, 14, 15 and 16 thereof, provides the Court with adequate information with which to review the Tribunal’s consideration of s.84 of the Tenant Protection Act. In addition, with respect to the Tribunal’s consideration of the mandatory provisions of s.84(2), the Tribunal’s decision clearly expresses its finding of fact that the Landlord is not in breach of the Act or the tenancy agreement, and that the Landlord has acted properly and with good motives.
Moreover, an earlier mediated settlement [concerning suite 1606] was reached demonstrating that the parties were prepared to work together. The animosity which would fuel a consideration of s.84(2)(a) and (c) is not present. See s.84(2) of the Tenant Protection Act.
- It is respectfully submitted that the Member correctly identified and applied the criteria necessary for the determination of the Appellant’s Request to Review.”
[8] We find no error on the record, as required by the statute, that would constitute a question of law under s.196 of the TPA There is no unreasonable finding of fact or misapprehension of fact amounting to an error in law. It is not incorrect for an administrative Tribunal to insist that the parties address the relevant issues and nothing that is irrelevant. Indeed, we have the same right.
[9] We find no error in the Tribunal exercising its discretion in refusing to grant the adjournment that was requested. Nor do we find any wrongful exercise of discretion by the Tribunal in any way. We find no bias on the part of Mr. Fine. For these reasons, the appeal is dismissed.
[10] I have endorsed the back of the Appeal Book and Compendium as follows: “This appeal is dismissed for the oral reasons recorded. Costs of this appeal are fixed at $3,500.00, payable by the tenant to the landlord, if demanded.”
O’DRISCOLL J.
JENNINGS J.
SWINTON J.
Date of Reasons for Judgment: June 25, 2004
Date of Release: July 13, 2004
COURT FILE NO.: 91/04
DATE: 20040625
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O’DRISCOLL, JENNINGS AND
SWINTON JJ.
B E T W E E N:
DAVID F. HASS
Appellant/Tenant
- and -
JETEX INVESTMENTS INC.
Represented at first instance by its agent, 1041646 Ontario Ltd., of which Browning Property Services is a division
Respondent/Landlord
ORAL REASONS FOR JUDGMENT
O’DRISCOLL J.
Date of Reasons for Judgment: June 25, 2004
Date of Release: July 13, 2004