Magnacca v. Zoppo, 2022 ONSC 5640
CITATION: Magnacca v. Zoppo, 2022 ONSC 5640
DIVISIONAL COURT FILE NO.: 21-874
DATE: 20221004
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Backhouse, Lederer and Bale JJ.
BETWEEN:
ANTONIO, a.k.a. ANTHONY MIKE, a.k.a. MAGNACCA
Appellant
– and –
MARIA CHRISTINA ENRIETTA ZOPPO
Respondent
Hugh Scher, for the Appellant
Self-represented
LANDLORD and TENANT BOARD
Respondent
Valerie Crystal for Landlord and Tenant Board
HEARD at Toronto by videoconference October 4, 2022
Reasons for Decision
Backhouse J.
[1] The landlord, Maria Zoppo, applied for an order to terminate the tenancy and evict Antonio a.k.a. Anthony Mike a.k.a. Magnacca (the “tenant”) because of serious impairment of safety and willful damage to the residential premises, 50 Oxford Street Toronto, lower unit.
[2] Following a hearing that the tenant did not attend, the Landlord and Tenant Board (“LTB”) found that the tenant or his guest seriously impaired the safety of people in the residential complex by covering the smoke and carbon monoxide detectors with plastic. An order issued on January 31, 2020 terminating the tenancy effective February 5, 2020.
[3] On February 10, 2020, the tenant requested a review and stay of the order. On February 11, 2020, an interim order was issued, staying the order.
[4] The request for review was heard by videoconference on September 22, 2021. The landlord, tenant and the tenant’s legal representative, Robert Heughan, attended the hearing. The LTB heard evidence presented by both the tenant and the landlord and found that the tenant’s evidence did not establish that he could not reasonably participate in the hearing and dismissed his request for review.
[5] There is a right of appeal to this court under s.210(1) of the Residential Tenancies Act 2006, S.O. 2006, c.17 from the LTB’s orders on a question of law.
[6] The LTB’s factum filed on this appeal states that the LTB usually sends the application and notice of hearing to the parties by mail. Counsel for the LTB confirmed that it was the Board’s practice to record that a notice of hearing was sent. However, in this case there is no record confirming service by the LTB of the Notice of Hearing on the parties.
[7] The tenant has not been paying rent ($2400/month) since 2019. There are other applications between the parties pending before the LTB where issues of failure to maintain the premises and interference with the tenant’s reasonable enjoyment of the premises are in issue.
[8] We have concluded that in these circumstances, the appellant/tenant has been denied procedural fairness and the appeal must be allowed and the eviction order of January 31, 2020 set aside. However, this was a problem arising from the LTB either not serving the notice or at least of making no record of service. Because the rent has not been paid for such a long time, the LTB has agreed to our request that it expedite the holding of a 5-day hearing to take place no later than November 30, 2022 where all the proceedings between these parties are to be consolidated and heard.
[9] The proceedings which are to be consolidated are:
The L2:TSL 11388-19 (the underlying application to this appeal);
The T2:TST08751-19; and
The L1: filed May 9, 2022 but not yet assigned a file number.
[10] As approximately three hours of evidence have been heard in the second matter (TST)8751-19), the parties consent to waiving any objection to starting afresh.
[11] Service of the notice of hearing on the tenant shall be on Hugh Scher, his counsel of record. Both parties shall confirm with the LTB the dates set for the hearing. The dates set for the 5-day hearing in November, 2022 shall be peremptory on the parties.
[12] In the circumstances, no order as to costs is appropriate.
___________________________ Backhouse J.
I agree _________________________
Lederer J.
I agree _________________________
S.T. Bale J.
Released: October 4, 2022