Dimitrijevic v. Callaghan, 2010 ONSC 5496
CITATION: Dimitrijevic v. Callaghan, 2010 ONSC 5496
DIVISIONAL COURT FILE NO.: 08-DV-1475
DATE: 2010-10-05
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
VALIN, FERRIER AND RADY J.J.
BETWEEN:
JOHN DIMITRIJEVIC Appellant
– and –
MARCUS CALLAGHAN, MICHEALA CALLAGHAN, SHARON CHAPMAN and LISA PLAMONDON Respondents
Self-represented
Self-represented
HEARD at Ottawa: October 5, 2010
ENDORSEMENT
[1] The appellant is the owner of a triplex located at 271 Stewart St, Ottawa. He lived in the main floor apartment with his mother.
[2] The respondents were tenants of the appellant in the third floor apartment. They paid $1,155 per month for rent, including utilities.
[3] On May 31, 2008, the appellant served the respondent tenants with an N-12 notice of termination of tenancy for landlord’s own use.
[4] The respondents vacated the rental unit and leased a new rental unit on June 13, 2008 that was similar in size. However, the rent at the new location was $1,588, plus hydro.
[5] In August 2008, the appellant rented a portion of the premises previously occupied by the respondents to new tenants for $1,795 per month.
[6] The respondents made an application under the Residential Tenancies Act for an order determining that the appellant gave a notice of termination in bad faith and for monetary compensation.
[7] On November 19, 2008, Greg Joy, a Member of the Landlord and Tenant Board conducted a hearing. On November 24, 2008, the Member issued an order in which he determined that the appellant had given notice to vacate to the respondents in bad faith and he ordered the appellant to pay compensation to the respondents in the amount of $6,726 for increased rental costs for one year plus moving expenses.
[8] This is an appeal from that order. The respondents have not filed any responding materials. At a readiness hearing conducted on September 16, 2010, Linhares de Sousa J. directed that the appeal proceed on default. Although duly served with the Notice of Appeal, none of the respondents appeared on this appeal in person or by counsel.
[9] We find that the appeal must succeed because the Member denied procedural fairness to the appellant in two instances. First, the Member refused to permit the appellant to call witnesses to give evidence relating to his reasons for issuing the notice of termination. In our view, that was relevant evidence that the Board should have received and considered. Second, the Member permitted the respondents to file their copy of the notice of termination following the conclusion of the hearing. The appellant had no opportunity to review that document or to cross-examine the respondents on it.
[10] The appeal is allowed. An order will issue returning this matter to the Board for a new hearing by a Member other than the Member Greg Joy.
[11] The appellant is entitled to his costs of the appeal as they relate to disbursements incurred. We hereby fix those costs in the amount of $500, inclusive of HST. The costs are payable by the respondents forthwith.
Mr. Justice G. Valin
Mr. Justice L. Ferrier
Madam Justice H. Rady
Released: October 5, 2010
CITATION: Dimitrijevic v. Callaghan, 2010 ONSC 5496
DIVISIONAL COURT FILE NO.: 08-DV-1475
DATE: 2010-10-05
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
VALIN, FERRIER AND RADY J.J.
BETWEEN:
JOHN DIMITRIJEVIC Appellant
– and –
MARCUS CALLAGHAN, MICHEALA CALLAGHAN, SHARON CHAPMAN and LISA PLAMONDON Respondents
endorsement
Released: October 5, 2010