THE GROUNDS OF APPEAL are as follows:
Main Grounds
under s. 83(3)
1.
Mandatory refusal applies to
situations which the RTA provides are serious enough to justify refusal -
regardless of any other circumstances. If a tenant raises circumstances which
might fall into subsection 83(3), the Member must decide whether it applies (Forgie v.
Widdicombe Place [2002] O.J. No. 2956 (Div. Ct.)). Further, once it is found that
subsection (3) applies, the Member must refuse the eviction (Chin v. Hunt
(1986), 17 O.A.C. 267 (Divisional Court)).
2.
Several pieces of evidence were
presented to the court that raised circumstances which might fall into
subsection 83(3) (see audio), and yet the court did not decide whether it
applies, and did not refuse eviction. The court did not even admit this
evidence at all. Instead, it made it’s decision based entirely on other pieces
of evidence and entirely on the question of good faith. This is an error in
law, as the court decided not to address a question it was legally required to
address.
3.
Upon review, the reviewing
member claimed that the court had broad discretion, implicitly citing the
reasonableness case of review. However, this is an error in law as the case law
suggests that the court does not actually have broad discretion, must rule on
the evidence and must refuse eviction if necessary.
4.
And, as the court does not have
broad discretion under the case law, this outcome does not fall into a range of
acceptable outcomes. The adjudicator erred in not analyzing the evidence, at
least. This consequently should be re-examined on a reasonableness standard of
review.
5.
Further, given once again that
the court does not have discretion under case law, the outcome is also simply
incorrect, and should be overturned on the correctness standard, as well. The
adjudicator erred in not analyzing the evidence correctly, or even at all, and
as a result of this came to the incorrect legal conclusion.
this is the meat and potatoes. i'll nitpick a few other things, because i can't bring anything new up after the fact, but this is what i'm focusing on.
i can't challenge the faith ruling. that's up to to the adjudicator - i have to wait until after the fact and sue, then. and had she examined the evidence, i'd have a hard time filling this out. but she was hasty. and maybe didn't take me seriously. and i have a good case for review, i really do.
