Patridge et al v. Borris-Brown

Court File No.: 04-Div-001067

ENDORSEMENT

This is an appeal from the review order of member McKee of the Ontario Rental Housing Tribunal dated 25 October 2004 with reasons dated 5 January 2005. This order was in response to a request to review a previous order of member Cantin. The original review was held because of an allegation of bias against Cantin. This allegation was sustained by McKee. This was after a second full hearing of this matter. The reasons for the apprehension of bias during the previous hearing are not relevant to our present considerations.

The Partridges, the tenants, are appealing the order of McKee. The order which speaks for itself awards arrears of rent to the landlord subject to an abatement of rent for heating costs and repairs.

There are numerous grounds of appeal. We will deal with the main ones in order.

First, there is an allegation that member McKee is biased. This is based on the fact that McKee awarded the same sum as to rent abatement as Cantin. We find on the record that McKee conducted a full and fair hearing. There is nothing on the record to give any indication of bias either real or perceived. There is a factual basis on the evidence for the finding that McKee makes. There is no basis to interfere with that finding.

Second, there is a complaint that full disclosure was not made. Simply put we can find nothing on the record to support this.

Third, the next concern is that a fair hearing was not held because McKee did not prevent Mr. Franklin from appearing as agent of the landlord. The allegation is that Franklin appeared as a witness. This matter was considered in the reasons by McKee at page three and four. It appears that the only testimony given by Franklin was about service of documents. This matter was not in dispute according to partridges’ agent Moak. We find nothing on the record that would allow us to interfere with the discretion exercised.

Last, the most important complaint is that McKee failed to consider s. 84 of the Tenant Protection Act. This section gives the power to the tribunal to deny or delay termination of the tenancy if the landlord did not keep the premises in reasonable repair. It seems the argument is that since it was not considered a new hearing should be held. We find that s. 84 was implicitly dealt with in the first four paragraphs of page four of the reasons of McKee. He finds amongst other things that on the appellants’ own video taped evidence, they impeded the landlord’s agent from affecting repairs. They were not at all cooperative in having repairs made. This aspect of the tenants’ conduct is indeed an appropriate consideration under s. 84.

Indeed, we find that this appeal is similar to that considered by this court in Finnermark v. Hum 2000 CarswellOnt 3553 per O’Driscoll, J. at paragraph 6 thereof.

“In our view, the Appellant’s Notice of Appeal, factum and submissions are all directed towards the findings of fact made by the Tribunal and/or how the Tribunal exercised its discretion. In our view, the Tribunal was entitled to make the findings of fact that it made. In our view, the Tribunal reviewed all of the evidence and exercised its discretion in a judicial way regarding the issues under s. 84 of the Tenant Protection Act. We cannot say that the Tribunal has erred in principle or misinterpreted material evidence or that its decision was in any way unjust. See: Sidaplex-Plaastic Suppliers Inc. v. Elta Group Inc. (1998), 43 B.L.R. (2d) 155. (Ont. C.A.)”

For these reasons the appeal is dismissed cost to respondent fixed in amount of $1,500.00 all inclusive.

McLean, J.

I agree

Cunningham, A.C.J.S.C.

I agree

Hambly, J.

Released: November 30, 2005