COURT FILE NO.: 123/05
DATE: 20050530
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
PORTREE PROPERTIES LTD.
Applicant/Landlord
(Respondent in Appeal)
- and -
ALAN DUNBAR and LOLA THOMPSON
Respondents/Tenants
(Appellants in Appeal)
Jane L. Ferguson, for the Applicant/ Landlord
Lola Thompson, Appearing In Person
HEARD at Toronto: May 30, 2005
O’DRISCOLL J.: (Orally)
[1] After several adjournments, the Landlord’s application for an order of eviction and the Tenants’ application for abatement of rent were scheduled to be heard by the Tribunal on January 27, 2005. Again, the Tenants sought an adjournment. It was refused by the Tribunal and the hearing proceeded. The Decision was reserved and issued on February 18, 2005. The Landlord succeeded and the Tenants’ application was dismissed.
[2] The Tenants filed a Notice of Appeal, dated March 29, 2005. The Tenant claimed that they were not within the 30 day time limit because they had not received the decision from the Tribunal. Counsel for the Landlord does not accept that statement but cannot prove the contrary.
[3] The Notice of Appeal was filed by a solicitor who was in possession of a Legal Aid Certificate for the limited purpose of filing the appeal. Legal Aid has since notified the solicitor that it will not fund the appeal. This morning, the solicitor, with the client’s consent, sought and obtained an order that she be removed from the record.
[4] Once the Notice of Appeal was filed, the appellant/tenant obtained the automatic stay of the eviction order. To date, the appeal has not been perfected. The transcript has not been ordered and the rent is in arrears in the sum of $837.38.
[5] The Tenants seek a thirty (30) day adjournment of this motion in order to retain another lawyer.
[6] The appeal to this Court provided by s.196 of the Tenant Protection Act (TPA) is confined to a question of law. I have read the reasons of the Tribunal: it dismissed the Tenants’ claim for abatement of rent and granted the order that the Tenants vacate because of the fact that the noise coming from the tenants’ apartment was disturbing the other tenants.
[7] The Tribunal said at pages 4 and 5 of its decision:
“3. I accept that there has been a history of noise problems from this Tenant. Many of these problems appear to relate to the Tenant’s involvement with her ex-husband. While a Tenant is not liable for the actions of a trespasser, I am not satisfied that the ex-husband was always on the premises without consent. I am also not satisfied that the Tenant has acted reasonably in ensuring that her ex-husband is not on the premises especially during the early morning hours or that while on the premises he has the ability to control his temper and noise. This is not an application regarding an isolated incident but rather a reported pattern of unacceptable behaviour that has lasted for months on an almost daily basis.
The Tenant has the responsibility to the Landlord and to the other Tenants in the building to control noise. I find that Ms. Thompson has interfered with the reasonable enjoyment of other tenants in the complex.
The Tenant did not dispute that she has disturbed other tenants of the building and I accept that she was sorry for doing so. However, there is no real indication that she is capable of correcting the problem.
I have exercised my discretion under Section 84 of the Tenant Protection Act, 1997, and delayed the eviction of this Tenant.”
[8] In my view, that is a finding of fact based on the evidence of neighbouring tenants. There is no question of law involved nor of mixed law and fact. As far as I can see, there is no merit to this appeal and the Notice of Appeal and Stay Order are simply instruments to stave off the ultimate day on which the Tenants will be required to vacate the premises.
[9] The appeal is quashed; the order of the Tribunal, dated February18, 2005 is reinstated and the stay order of March 29, 2005 is set aside. The Sheriff shall enforce the February 18, 2005 order of the Tribunal but not earlier than June 15, 2005. The usual procedure that the opposing party approve of the order is disposed of in this case.
[10] Costs of this motion are fixed at $500.00 payable, if demanded, by the Tenants to the Landlord.
O’DRISCOLL J.
Date of Reasons for Judgment: May 30, 2005
Date of Release: June 9, 2005
COURT FILE NO.: 123/05
DATE: 20050530
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
PORTREE PROPERTIES LTD.
Applicant/Landlord
(Respondent in Appeal)
- and -
ALAN DUNBAR and LOLA THOMPSON
Respondents/Tenants
(Appellants in Appeal)
ORAL REASONS FOR JUDGMENT
O’DRISCOLL J.
Date of Reasons for Judgment: May 30, 2005
Date of Release: June 9, 2005