Superior Court of Justice - Divisional Court

Court File No.: DC0708236400 Date: September 12, 2007

Between:

Leonia Emerson Plaintiff/Respondent

• and -

Harold Themer Defendant/Appellant

Counsel: J. Swain for the Plaintiff/Respondent A. Formosa for the Defendant/Appellant

Before: CUMMINGHAM, MEEHAN, HILL, J.J.

Heard at Newmarket: September 12, 2007

Endorsement

CUNNINGHAM, J.

[1] In our view, the issue regarding bad faith is a question of fact, or as Mr. Justice Lane stated in Liu vs. Chen [2004] O.J. No. 3965, at best a question of mixed fact and law and is not reviewable by this Court.

[2] The Tribunal member considered the evidence before her and did not accept the landlord’s explanation concerning the reasons for delay in moving his daughter into the premises.

[3] Clearly, there was an appropriate weighing of the evidence regarding intention, and in our view, the Tribunal member correctly applied the statutory tests in determining the issue of intention. We cannot interfere with this portion of the members’ decision.

[4] As to the issue concerning the absence of transcripts, we find in the present case that the absence of transcripts has not prejudiced the Appellant. The Tribunal order, along with the exhibits, demonstrate there was a bona fide case. Moreover, this case is distinguishable from Cymbalski v. Alcom [2006] O.J. No. 971, as it does not involve allegations of bias or procedural unfairness. This ground of appeal cannot succeed.

[5] Finally, we find the calculation of damages by the Tribunal member to be a question of fact and not reviewable by this Court.

[6] Accordingly, the appeal is dismissed.

[7] Costs are fixed at $750.00.

CUNNINGHAM, J.

MEEHAN, J.

HILL, J.

Released: September 12, 2007