CITATION: Beseiso v. Presendieu, 2022 ONSC 6424
COURT FILE NO.: DC-21-2644
DATE: 2022/11/14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, J. A. RAMSAY, LEIPER JJ.
BETWEEN:
ALEX BESEISO and BESEISO REALTY INC.
Landlords/Appellants
(Respondents by cross-appeal)
– and –
FAISAL JAFAR BESEISO
Landlord
(Respondent by cross-appeal)
– and –
GARRY PRESENDIEU
Tenant/Respondent
(Appellant by cross-appeal)
Not appearing
Daniel Tucker-Simmons, counsel for the Tenant (Appellant by cross-appeal)
HEARD: By videoconference in Ottawa on November 14, 2022
REASONS FOR Judgment
The court (Orally)
[1] On May 8, 2019, the Tenant, Garry Presendieu, applied to the Landlord and Tenant Board (“LTB” or the “Board”) alleging illegal lock-out and illegal entry by his Landlords Alex Beseiso, Beseiso Realty, and Faisal Jafar Beseiso (collectively, the “Landlord”). The Tenant sought $19,687.38 in special damages, and $5,000.00 in general damages for pain and suffering. Among other evidence, the Tenant tendered a psychological report before the LTB which described the impact of his housing situation (several months post-eviction) on his mental health.
[2] On January 12, 2021, the Board made findings against the Landlord and ordered it to pay the Tenant $12,242.30 for discontinuance of services, illegal lock-out, harassment, interference and for disposing of the Tenant’s belongings. The Board found the evidence “compelling” on the question of threats and harassment and found that the Landlord showed a “complete disregard for authority, specifically for the Ministry of Municipal Affairs and Housing.” Despite police advice to the contrary, the Landlord continued to breach s. 23 and s. 24 of the Residential Tenancies Act, 2006, SO 2006, c 17, (the “RTA”).
[3] The Landlord appealed to the Divisional Court from the decision of the Board. The Tenant cross-appealed on the issue of general damages.
[4] On January 24, 2022, the Divisional Court issued an endorsement confirming that the Landlord had decided not to continue to participate in this appeal. That endorsement stayed the Landlord’s appeal.
[5] The Tenant on cross-appeal argues that the LTB erred in law by failing to apparently consider or award him general damages for pain and suffering caused by the Landlord’s illegal lock-out and harassment. He submits that the LTB Reasons for Decision did not address the evidence of mental distress, nor did the LRB discuss his claim for general damages for pain and suffering. He submits that this is an error in law and asks this court to order the requested amount of $5,000 in general damages for his pain and suffering as established on the record that was before the LTB.
[6] The Tenant has provided comparable decisions where the LTB has ordered general damages in cases of harassment and illegal lock outs. In the first case cited, HOT-02167-17 (Re), 2019 86881 (ON LTB), the LTB reasoned that:
…it seems to me that the quantum of general damages normally awarded to compensate a tenant for an illegal lockout is $2,500.00. That sum takes into account the inherent indignity of having one’s home taken away; the time, effort, frustration, and stress of having to arrange food and accommodations while also seeking legal assistance; and the inconvenience and displacement of being without a home.
To be clear, I do not find an award of $2,500.00 to be automatic. It is open to a landlord to show that a lockout had an unusually low impact on a tenant. Likewise, it is open to a tenant to show that a lockout had an unusually high impact. Absent unusual circumstances, however, I find $2,500.00 to be the normal award.
(at paras. 35 and 36)
[7] In ST-r26870-12 (Re), 2012 46802 (ON LTB), the LTB found that the Landlord and the Landlord’s agents “harassed, obstructed, coerced, threatened and interfered with the Tenant, altered the locking system on a door giving entry to the rental unit or residential complex without giving the Tenant replacement keys and substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenant or by a member of his household.” It found this to be on the extreme end of harassment and being satisfied that the Tenant experienced extreme psychological distress, that an award of damages of $5,000 was justified upon the available evidence.
[8] Here, we conclude the LTB erred in law in failing to address in its reasons the claim for general damages, the evidence in support of that claim and the legal framework applicable. The lack of any such discussion in the reasons, in light of the findings of the Landlord’s actions, and the impact of those actions on the Tenant mean that the reasons are incapable of any meaningful appellate review. The reasons for the LTB decision on this issue do not appear from the record as a whole. Accordingly, we allow the cross-appeal on this basis.
[9] Section 210(4) of the RTA provides this court with the authority to affirm, rescind, amend or replace the decision or order, or remit the matter to the Board with the opinion of the Divisional Court.
[10] We are satisfied that on the record before us that the Tenant has shown the LTB ought to have considered and made an award of general damages based on the evidence and prior jurisprudence of the Board in similar cases. This litigation has been lengthy: the events involved began in 2019. We have the benefit of a psychological report, and the Landlord received notice of the arguments to be made and chose not to participate in the appeal further.
CONCLUSION
[11] In all of the circumstances, we amend the order of the LTB and require the Landlord to pay the Tenant $5,000 in general damages for pain and suffering relative to the findings that the Landlord breached ss. 23 and 24 of the RTA.
[12] The Landlord did not appear at the hearing today. It has filed no further material nor sought to pursue its appeal. Accordingly, we dismiss the Landlord’s appeal as abandoned.
[13] We order costs in favour of the Tenant on a partial indemnity basis in the amount of $5,250 plus HST.
Swinton J.
J.A. Ramsay J.
Leiper J.
Date of Oral Reasons for Judgment: November 14, 2022
Date of Written Release: November 17, 2022
CITATION: Beseiso . v. Presendieu, 2022 ONSC 6424
COURT FILE NO.: DC-21-2644
DATE: 2022/11/14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, J.A. RAMSAY, LEIPER JJ.
BETWEEN:
ALEX BESEISO and BESEISO REALTY INC.
Landlords/Appellants
(Respondents by cross-appeal)
– and –
FAISAL JAFAR BESEISO
Landlord
(Respondent by cross-appeal)
– and –
GARRY PRESENDIEU
Tenant/Respondent
(Appellant by cross-appeal)
REASONS FOR judgment
The Court
Date of Oral Reasons for Judgment: November 14, 2022
Written Reasons Released: November 17, 2022