COURT FILE NO.: 369/04
Toronto
DATE: 20050708
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, JENNINGS AND LINHARES DE SOUSA JJ.
B E T W E E N:
ANDREA JACKSON & KEVIN M. LEV
Appellants
- and -
ELENA E. LEPORI and STEFANO M. LEPORI
Respondents
Glenn Zacher, for the Appellants
Stefano M. Lepori, in person
No appearance for the Respondent, Elena E. Lepori
HEARD: June 22, 2005
MATLOW J.
[1] At the conclusion of the hearing of this appeal brought by the landlords, this Court made the following endorsement on the appellants’ appeal book and compendium;
“This appeal is allowed.
The order of June 4, 2004, of the Tribunal is set aside.
In its place an order will issue;
fixing the legal monthly rent of the subject premises at $3000 from May 1, 2003, to the present; and
requiring the tenants to pay all arrears owing of $600 per month from May 1, 2003, to the present.
We are all in agreement that the Tribunal’s order reflects an error of law which requires our intervention.
Having found that “The Tenants were required under clause 13 (of the lease) to make renovations to the bathroom” and having found that “The Tenants have done this”, the Tribunal erred in failing, without explanation, to attribute the appropriate amount of the cost of those renovations to the amount of rent payable for the subject premises as “rent” is defined in section 1 (1) of the Tenant Protection Act.
Further written reasons will follow.
Costs are reserved.”
[2] In the circumstances of this case, we were fortunately able to dispose of this appeal on the basis of our consideration of the record before us and the submissions and admissions made to us without the benefit of any transcript or other record of the proceeding before the Tribunal. We were satisfied that the rent for the subject premises had been $3,000 per month and that the rent payable had included a component of $600 per month that was attributable to the renovations that the tenants had made. Accordingly, we were persuaded that the Tribunal had misunderstood and failed to address the principal issue before it properly and thereby, in its disposition of the application before it, failed to meet the standards of review of both correctness and reasonableness.
[3] Nevertheless, it would have been desirable if we had been able to review a transcript of the proceeding before the Tribunal to search for some explanation for the Tribunal’s order but that was not possible because, as ascertained by counsel and reported to us, the Tribunal’s recording of the hearing is inaudible and all reporters contacted by the appellants have refused to transcribe it.
[4] Having determined that this appeal should be allowed, it was our view that justice required that we substitute our order for that of the Tribunal rather than remit this application to the Tribunal for a new hearing. We were persuaded that we could properly grant the order that ought to have been made and that we should not allow the unavailability of a transcript to delay further the just resolution of this appeal.
[5] This Court is frequently advised by counsel who appear on appeals from orders of the Tribunal that proceedings are not always recorded and, even when they are, it is not always possible to obtain a reliable transcript showing what occurred.
[6] Accordingly, we take this opportunity to express our view that, despite the absence of any statutory requirement that all hearings of the Tribunal be recorded, it would be wise for the Tribunal to record all hearings in a manner that makes it possible for parties to obtain accurate and reliable transcripts for use in appeals. Without such transcripts, it will continue to be necessary for some applications to be remitted to the Tribunal for new hearings when appeals cannot properly be determined without them. Such new hearings add considerable cost and delay to a process that should be both affordable and expedient and should not become necessary only because this Tribunal does not take the necessary steps to record its proceedings effectively.
[7] The appellants are entitled to recover costs of this appeal from both respondents, fixed at $1,500, payable within 30 days.
Matlow J.
Jennings J.
Linhares de Sousa J.
Released: July 8, 2005
COURT FILE NO.: 369/04
Toronto
DATE: 20050708
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, JENNINGS AND LINHARES DE SOUSA
B E T W E E N:
ANDREA JACKSON & KEVIN M. LEV
Appellants
- and -
ELENA E. LEPORI and STEFANO M. LEPORI
Respondents
REASONS FOR JUDGMENT
MATLOW J.
Released: July 8, 2005