Court File and Parties

CITATION: Decosse v. Isles of Innisfree Non Profit Homes, 2012 ONSC 1413

COURT FILE NO.: DC-861-10

DATE: 20120229

SUPERIOR COURT OF JUSTICE – ONTARIO

(Divisional Court)

RE: Richard Decosse, Tenant (Appellant)

AND:

Isles of Innisfree Non Profit Homes, Landlord (Respondent)

BEFORE: Smith, C.J.S.C.O., Gauthier, R.S.J., Matlow, J.

COUNSEL: Grace Alcaide Janicas, for the Tenant (Appellant)

Bernard L. Gervais, for the Landlord (Respondent)

HEARD: February 28, 2012 at Sudbury, Ontario

ENDORSEMENT

Disposition:

[1] The appeal is allowed. Both the eviction order and the request for review order are set aside. The matter is remitted to the Board differently constituted for a rehearing of the landlord’s application for eviction.

Background facts:

[2] The tenant is a single disabled person living in rent-geared-to-income housing. He was ordered evicted as a result of rental arrears of $425. He had ceased paying his rent due to issues relating to maintenance, utilities, and the lack of proper storage space. The matter was twice adjourned before the hearing of November 10, 2010. On that date the tenant arrived approximately 20 minutes late for the hearing complaining about traffic delays. The hearing had proceeded in his absence and an eviction order was issued, despite the tenant’s prior attendances before the Board, and his clear intention to dispute the landlord’s application.

[3] On December 15, 2010, Member Cormier issued Reasons for the eviction order of November 12, 2010, at the request of the tenant. The Reasons state that the landlord had presented evidence in support of the application, the tenant had not been present to refute that evidence, and the landlord’s application was therefore granted.

[4] The tenant filed an application for review within the required time frame, setting out his grounds for the review as follows:

I feel that I have been denied natural justice in that I was late for the hearing and the hearing was heard without me present. There was a good reason for being late and it was out of my control. The bus I was on was extremely late because of road construction which caused major problems for anyone trying to enter the city. It was so major that it ended up being reported in the Northern Life Newspaper. I have included a copy of this article with this request.

[5] Member Stevens denied the application for review for the following reasons:

The evidence filed by the Tenant, a newspaper article, discusses a traffic problem in completely different parts of the City from where the rental unit is located or the bus route in that area. The Tenant provided no evidence to support his statement that road construction caused his bus to be late.

Standard of Review:

[6] A Tribunal is required to comply with the requirements of natural justice. There is no standard of review. On appeals on questions of law, the standard of review to be applied is correctness.

[7] Failure to meet the standards will result in a Tribunal’s order being quashed.

[8] Under the Residential Tenancies Act, 2006, S.O. 2006 c. 17, there is a statutory right of appeal on questions of law alone, a factor suggesting a more rigorous standard of review. Further, the Court has wide powers on appeal, and may affirm, rescind, replace, or amend the decision below, remit the matter back with the opinion of the Court, and make any other order that it considers proper. It may substitute its own opinion for that of the Tribunal.

Analysis:

[9] At the hearing on November 10, 2010, the Board failed to conduct the mandatory review provided for in s. 83(2) of the Residential Tenancies Act, 2006, thereby committing an error of law.

[10] In denying the tenant’s application for review, Member Stevens made an adverse ruling regarding the tenant’s credibility in the absence of any conflicting evidence.

[11] There was no basis for her to make such adverse credibility finding. The only evidence before her was the tenant’s uncontradicted explanation for being 20 minutes late for the hearing, which explanation had been proffered by the tenant at the hearing, within minutes of the eviction order being issued.

[12] In addition, the tenant had indicated, on two previous occasions, on August 11, 2010, and September 15, 2010, his clear intention to dispute the landlord’s eviction application.

[13] The improper failure to permit review in these circumstances resulted in the tenant being subject to an eviction order, without recourse, notwithstanding his demonstrated clear intention to respond to the landlord’s application, and to raise his own issues relating to maintenance, utilities, and lack of storage space, which the statute permits him to do in response to the landlord’s application.

[14] There clearly was a denial of natural justice.

[15] For the above reasons, we allow the appeal, set aside the eviction order and the request for review order, and remit the matter to the Board differently constituted for a rehearing of the landlord’s application for an eviction order.

Costs:

[16] Counsel may make written submissions regarding costs by exchanging them and by depositing them, in triplicate, with the office of this court at Sudbury on or before April 1, 2012, failing which there will be no order as to costs.

Smith, C.J.S.C.O.

Gauthier, R.S.J.

Matlow, J.

RELEASED: February 29, 2012