done.
next, i need to get a list of the evidence. then i can serve. tomorrow, maybe...
i was going to drop it off, but i want to double check the rules around mailing. here's the thing: i fully expect them to lie and say they never got it. so, does that matter, really, if i mail it?
what if i use registered mail, or something? a tracking number...
i'll look into it.
Divisional Court,
SUPERIOR COURT OF JUSTICE
B E T W E E N :
TA
Applicant
(Respondent
in Appeal)
and
Jason Parent
Respondent
(Appellant)
Proceeding under
the Residential Tenancies Act, 2006.
NOTICE OF
APPEAL
THE APPELLANT, JASON PARENT, APPEALS to the Divisional Court
from the order of Lorraine Mathers (Landlord and Tenant Board) dated Oct 23,
2017 made at London, Ontario.
THE APPELLANT ASKS that the
order be set aside and an order be granted dismissing the application dated Aug
30, 2017 brought by to terminate the tenancy for landlord’s own use
(the n12).
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 board that raised circumstances which might fall into
subsection 83(3) (see audio), and yet the board did not decide whether it
applies, and did not refuse eviction. The board did not even analyze 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 board decided not to address a question it was legally required to
address, according to Forgie v. Widdicombe Place.
3.
Upon review, the reviewing
member (Elizabeth Usprich) claimed that the board had broad discretion,
implicitly citing the reasonableness standard of review. However, this is an
error in law as the case law suggests that the board does not actually have
broad discretion, must rule on the evidence when presented with it and must
refuse eviction if necessary. In not upholding the existing precedent, the
adjudicator exceeded her bounds and did not respect her jurisdiction.
4.
And, as the board does not have
broad discretion under the case law, and the adjudicator must follow the
existing precedent, this outcome does not fall into a range of acceptable
outcomes. The adjudicator erred in not analyzing the evidence, at least. The
question of the applicability of 83(3) should consequently be examined on a reasonableness
standard of review: the divisional court must do the proper evidentiary analysis
that the adjudicator failed to do.
5.
Further, given once again that
the board does not have broad discretion under case law, and must follow the
existing precedent, 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.
Specific
Errors That Affected the Decision
6.
The adjudicator erred in
claiming that “the tenant did not relate the particulars of what happened but
only mentioned that she was verbally threatened with eviction”. An analysis of
the audio will indicate that the tenant was in fact explicit about the
particulars, and related it clearly to the previous case, SWT-01670-17, which
was the primary basis of the defence under s. 83. The adjudicator could not
have analyzed the relevant evidence under s. 83(3) if she claims it was never
presented.
7.
The adjudicator erred in not
drawing the obvious inference between the warning left on March 31st
and the previous case, SWT-01670-17. This was necessary in order to come to the
proper conclusion. The adjudicator simply ignored the context around this
evidence, then claimed the tenant never presented it.
8.
The adjudicator erred in deducing
that a “written warning and final notice” is not a threat of imminent action,
or indicative of an intent to evict.
9.
The adjudicator erred in not
properly interpreting the letter left on April 1st as an obvious
set-up attempt.
10. The adjudicator erred in claiming that “I note that there was no
evidence in the Tenant’s email describing the events that suggested the
Landlord threatened eviction”.
11. The adjudicator erred in not properly interpreting the emails around
the claimed difficulties in electronic payment on august 1st as a
clear documentation of a second obvious set-up attempt.
12. The adjudicator erred in failing to note that the eviction notice
presented on August 10th was without cause (for being off of the
property), and was a third clear obvious set-up attempt.
13. The adjudicator erred in failing to note that the eviction notice
presented on august 11th was also without cause, and an actual clear
admission of retaliatory action – a fourth obvious (if strange.) set-up attempt.
14. The adjudicator erred in failing to deduce the obvious truth that
re-serving already voided n4s is a clear indication of a desire to terminate
the tenancy.
15. The adjudicator erred in stating “Further the two letters the Tenant
received gave no indication that the Landlords were seeking termination of the
tenancy.”
16. On review, the member (Elizabeth Usprich) erred in stating “First,
if the Tenant did not raise that specific argument at the hearing it should
have and could have been and therefore is not properly considered on review”. Forgie provides a clear precedent
otherwise: that the adjudicator must interpret any evidence of this nature that
exists. Yet, the fact is that the tenant did raise this argument, which can and
will be demonstrated via the court audio.
17. On review, the member (Elizabeth Usprich) erred in stating “The
hearing member has broad discretion in issuing her order.”. Again, the
precedent in Fergie and Chin is that the refusal is mandatory
upon the existence of the relevant evidence
18. On review, the member (Elizabeth Usprich) erred in stating “Rather
it seems that the Tenant is attempting to re-argue his (sic) own position.”.
Rather, it seems that the member is unaware of the proper precedent, in
context.
General Error
19. The board also made repeated errors in terms of the concept of a
burden of proof, suggesting that it is the tenant’s responsibility to prove
that the landlord is not in good faith. This is just a basic error of law as
the burden of proof always lies with the party presenting the argument. We
can’t have a system where landlords are free to make whatever claim they want,
and just dare the tenants to prove them wrong, if they can. That’s really
absolutely ridiculous: of course the burden of proof was with the applicant.
These strange arguments may indicate a bias on behalf of this adjudicator
towards property in general.
THE BASIS OF
THE APPELLATE COURT’S JURISDICTION IS: The appeal is from a final order of an
adjudicator of an administrative tribunal, namely the Landlord and Tenant Board
of Ontario.
The appellant
requests that this appeal be heard at 245
Windsor Ave, Windsor, Ontario.
