CITATION: Ecuhome Corporation v. Elkhouli, 2011 ONSC 6775
DIVISIONAL COURT FILE NO.: 610/10
DATE: 20111115
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ECUHOME CORPORATION
Landlord
(Respondent)
– and –
MOHAMED ELKHOULI
Tenant
(Appellant)
Gordon Wood, for the Landlord (Respondent)
In Person
HEARD at Toronto: November 15, 2011
PARDU J. (orally)
[1] The tenant, Mohamed Elkhouli, moves for an order allowing him to resurrect an appeal from a decision of the Landlord and Tenant Board, dated December 2, 2010. He served a Notice of Abandonment of this appeal on April 19, 2011.
[2] The hearing before the Board follows an application by the Landlord to terminate the tenancy for non-payment of rent. At the hearing Mr. Elkhouli adduced evidence of mould and cockroaches in the premises and had other complaints about the condition of the premises.
[3] The Board ordered an abatement of rent and ordered that the tenancy would be terminated unless the tenant paid $586.20 in rent, which the tenant paid.
[4] The Notice of Appeal from that decision complains that he was not allowed to enter evidence. He says the mould problem was not remedied, contrary to what was alleged by the Landlord. He asked for an order that the Landlord provide him with physical and financial assistance to move out or provide him with a mould free unit. Mr. Elkhouli says he abandoned his appeal because he could not get legal aid.
[5] In March, 2011, the Landlord brought a further application to terminate the tenancy for non-payment of rent. Mr. Elkhouli complains that he did not receive a fair hearing on April 13, 2011, as he was not allowed to present evidence that the premises were still affected by mould. He asked for the landlord to help him in physically moving his property due to back problems and for financial help to move out.
[6] There is no practical need to continue with two appeals in this matter. Mr. Elkhouli can still argue that the hearing on April 13, 2011 was unfair at his appeal from that decision now scheduled for February, 2012. He can argue there that he should have been able to present evidence that the mould problem continued.
[7] There is nothing in the record which establishes likely error at the three day hearing resulting in the December 2, 2010 decision and there is no explanation why the tenant waited for six months to attempt to set aside the Notice of Abandonment.
[8] I am not satisfied that fairness requires setting aside the previous Notice of Abandonment and the motion is dismissed.
COSTS
[9] Costs should follow the result and the amount claimed by the Landlord is reasonable at $1,926.00. The tenant has no assets and is on social assistance. He has no means to pay costs and no foreseeable ability to pay costs. There should be some costs consequences for an unsuccessful motion and I award costs to Ecuhome fixed at $200.00.
PARDU J.
Date of Reasons for Judgment: November 15, 2011
Date of Released: November 18, 2011
CITATION: Ecuhome Corporation v. Elkhouli, 2011 ONSC 6775
DIVISIONAL COURT FILE NO.: 610/10
DATE: 20111115
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PARDU J.
BETWEEN:
ECUHOME CORPORATION
Landlord
(Respondent)
– and –
MOHAMED ELKHOULI
Tenant
(Appellant)
ORAL REASONS FOR JUDGMENT
PARDU J.
Date of Reasons for Judgment: November 15, 2011
Date of Released: November 18, 2011