CITATION: Urbanowicz v. Transglobe, 2010 ONSC 2063

DIVISIONAL COURT FILE NO.: 08-DV-1466

DATE: 2010/04/08

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: CELINA URBANOWICZ and ISMET HAJRIZI, Appellants

AND

TRANSGLOBE PROPERTY MANAGEMENT SERVICES LTD., Respondent

BEFORE: KENT, HEENEY AND WILTON-SIEGEL JJ.

COUNSEL: Karin Galldin, Counsel for the Appellants

Joseph Hoffer / Kristin A. Carnie, Counsel for the Respondent

HEARD: April 7, 2010

ENDORSEMENT

[1] The Appellants contend that Member Naud of the Landlord and Tenant Board made four errors of law. The issues of a board member’s jurisdiction to order the Respondent Landlord to provide a “neutral letter of reference” to the Appellant tenants and to reduce the tenants’ Notice of Termination period to 10 days have become moot. This court will therefore not address them further.

Rent Abatement Issue

[2] The Respondent’s counsel contends that Member Naud correctly ruled that he did not have jurisdiction to award any rent abatement to the Appellants even though he found that the Respondent had failed to comply with his obligation to repair or maintain the rental unit. Section 30(9) and section 204(1) of the Residential Tenancies Act, 2006, S.O. 2006 c. 17 provide that jurisdiction. While the (then) self‑represented Appellants did not specifically request an abatement in their original materials, they had been withholding rent in an effort to motivate the Respondent to take action to remedy a serious cockroach infestation. The Respondent would have known that some abatement would be a consideration, even if not specified in the material. Further, the Appellants did seek “[a]ny other costs or orders that the Board may deem appropriate”. While the Member would have had to provide the Respondent with an indication that he was considering a rent abatement and received submissions on the issue, that does not exclude the Member’s jurisdiction.

[3] Member Naud’s ruling therefore constituted an error in law. Accordingly, when, following that ruling, he calculated the Appellants’ rent arrears and ordered them to be paid without consideration of whether a rent abatement was appropriate, he continued with that error.

Reasonableness of Tenants

[4] The Appellants’ counsel maintains that although Member Naud had jurisdiction to make an award to the Appellants for the cost of fumigating their electronic equipment, furniture and appliances, the award of $1,000 was based on a finding upon which no evidence was presented. The Member found that the Appellants had paid out $7,910. His finding that “With the same amount of money the tenants could have replaced their possessions for new electronic appliances” was not supported by any evidence.

[5] As the Member’s conclusion that the Appellants’ reasonable expenses of fumigation were $1,000 was based at least on part in the latter finding, the Member’s conclusion constituted an error in law.

Result

[6] We are all of the view that this appeal must be allowed and the matter returned to the Landlord and Tenant Board for:

(i) a determination of what rent abatement, if any, the Appellants may be entitled to; and

(ii) a determination of the reasonable amount for which the Appellants should be compensated for the fumigation of their electronic equipment, furniture and appliances.

Costs

[7] The Appellants shall have their costs fixed on a partial indemnity basis in the amount of $3,240 plus GST.

Mr. Justice J. Kent

Mr. Justice T. Heeney

Mr. Justice H. Wilton-Siegel

Released: April 8, 2010