COURT FILE NO.: DC-05-075497-00

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

DURNO, ASTON and WILSON, JJ.

B E T W E E N: )

PAUL CYMBALSKI and )

JEANNE CYMBALSKI )

Applicants )

Respondents on the Appeal)

• AND - )

ROBERT ALCORN ) Robert A. Leck

) for the Respondent

Respondent )

Appellant on the Appeal )

) Heard at Newmarket:

) March 8, 2006

REASONS

WILSON, J:

[1] The Appellants, Paul and Jeanne Cymbalski, appeal from the order of Alan Mervin, a member of the Ontario Housing Rental Tribunal, (the Member), dated April 1st, 2005. He terminated the tenancy with Robert Alcorn, based upon the landlords’ application to occupy the rental property for his personal use.

[2] The Appellants raise several issues including:

First, that the hearing breached principles of procedural fairness and natural justice by the Member exhibiting bias or the reasonable apprehension of bias.

[3] Second, they allege that the Member failed to grant an adjournment to allow the Appellants to call evidence with respect to the maintenance issues, and to refute the bona fides of the landlord on the personal use issue.

[4] Finally, the Appellant alleges that the Member exhibited impatience with the tenants making detailed submissions concerning maintenance issues, and imposed unreasonable time limits with respect to the length of the hearing.

[5] We have reviewed the cogent reasons of the Member.

[6] The Appellants’ material raises the concern that no transcript or tape was available when they attempted to secure it for the purpose of this appeal. The difficulty we face is that it is virtually impossible to assess the issues raised by the Appellants without the benefit of a transcript or a tape.

[7] No transcript or tape recording was available for the proceedings due to a mechanical malfunctioning of the recording equipment.

THE LAW:

[8] The absence of a transcript or tape raised serious concerns for this court, given the matters in issue.

[9] We note that on at least five occasions this Court has commented unequivocally, and expressed grave concerns about the failure to properly record proceedings before the Tribunal.

[10] This failure to report the proceedings may well prevent this Court from fulfilling, in a meaningful way, its appellate functions.

[11] The first case is a decision of LaForme, J., (as he then was), in Smolcec v Longhouse Village (Thunder Bay) Inc., [2001] O.J. No. 875 (Div. Ct.) This decision provides:

“Although the governing legislation and

s.20 of the Statutory Powers and

Procedures Act do not mandate transcripts

or tapes, the absence of a transcript may

make it impossible for the Court to fairly

determine an issue raised on appeal.”

[12] He concludes at paragraphs 40 and 41 of his decision, as follows:

[40]

“Counsel for Longhouse Village provided

this Court with authorities such as

Meredith, in support of its position that

the Tribunal was entitled to make the

findings of fact it did. However, unlike

the authorities relied upon by Longhouse

Village, the circumstances of the case at

bar actually deprives this Court of the

ability to examine the evidence referred

to by Mr. Smolcec in his grounds of

appeal.”

[41]

“It is clear to me that the absence of

records, especially the transcripts, of

the original hearing of December 9th,

1999, that form the basis of the February

10th, 2000 review, has restricted Mr.

Smolcec’s ability to advance properly his

grounds for appeal. It is virtually

impossible for this Court to determine if

the errors alleged by Mr. Smolcec did in

fact occur during the original hearing.”

[13] These principles were applied in a further decision of Nimmo v Toronto Housing Co. [2002] O.J. No. 3450 (Div. Ct.) The Court concluded at paragraph 6:

“The absence of a proper record can

adversely affect not only the Appellant’s

right to a fully considered appeal and

the Respondent’s right to a fully

considered response, but the Court’s

ability to provide a fully considered

determination. Principles of natural

justice may be violated. The Divisional

Court has earlier expressed its concerns

about such circumstances in Smolcec v

Longhouse Village (Thunder Bay) Inc.,

[2001] O.J. No. 875, per LaForme, J.

[14] Similar concerns were voiced by this Court in a decision McKenzie v Supportive Housing in Peel [2205] O.J. No. 1518 (D.C.) by Lane, J. at paragraph 4:

[4]

“Regrettably, once again, the Court is

faced with an appeal from this Tribunal

where there is no transcript available.

The copy of the audio recording made for the

Appellant was indecipherable and could not

be transcribed. It is not, therefore,

possible to know whether the Tribunal was

aware of the Appellant’s special needs as

a person with a disability. What is clear

is that the Tribunal did not refer in its

Reasons to her condition, or to any need

to consider the relationship of the Act,

particularly s.84(1) and the provisions of

the Ontario Human Rights Code.”

[15] Two other decisions of this Court confirm that the failure to provide tapes or transcripts that make it impossible for the Court to determine the issues on appeal before it, constitutes in and of themselves grounds for an appeal, resulting in the matter being remitted to the Tribunal for a further hearing. (See Manpel v Greenwin Property Management [2005] O.J. No 3079 (Div. Ct.) and Fisher v Moir [2005] O.J. No. 4479 (Div. Ct.).

[16] In our view these cases apply to the case being considered by this court.

CONCLUSION:

[17] In the Appellant’s material issues were raised about the conduct of the proceedings, and comments made by the Member. These allegations are undisputed although the Respondent states that the comments made by the Member have been taken out of context. We cannot fairly assess this issue without the benefit of the transcript.

[18] As well, it is undisputed that during the hearing, the tenants sought legal advice from duty counsel and were advised to seek an adjournment to call evidence with respect to the bona fides of the landlord with respect to the personal use issue as well the maintenance issue. This request for an adjournment is documented. The Member refused the adjournment and adhered to the time limits imposed by him.

[19] In these circumstances, in the absence of a transcript, we cannot determine the issues raised on this appeal, and therefore, with reluctance, we set aside the decision of the Member and direct that the matter be remitted to the Tribunal to be reheard before a different Tribunal Member.

[20] On the next occasion we trust that adequate functioning recording equipment will be available.

[21] We understand that the landlord has initiated another Application alleging rent arrears. We urge the parties to consolidate all outstanding matters, to have this matter finally determined on its merits as soon as reasonably possible.

DURNO, J

ASTON. J.

WILSON, J.

Released: March 9th, 2006