no. i need to serve personally.

they have kids. somebody will be home at 7:00. i presume that mom is living there, right now.

if i can't get it to the landlord, i can give it to an adult member (it might be mom. maybe the husband.) and then mail a second copy of it the next day.

and, i have a week to keep trying...

it's a decent bike ride. nice nights. i'll enjoy it.

showing at 4:00. then, this gets done.

no, i should sleep, and get back to it when i'm fresh.

that wasn't as hard as i thought, after all. i just had to get my head around what i was actually doing, first. it developed quite quickly, after that.

i have my two documents done. now, i  need to get them into the hands of my landlord. i just need to make sure i understand those rules.

i'm also going to need to get some documents down to city hall, including a request for a transcript of the audio from the last court date.

i'm still awake, so i'm going to keep going. first showing today is at 4:00.

step one.

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 31^st 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 1^st 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 1^st 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 10^th 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 11^th 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.

getting there...

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.

if i move, it will almost certainly be to toronto.

i have better access to trans doctors, there.

and i have no interest at all in moving back to ottawa.

i'd say 90% likelihood to toronto, vs. 10% likelihood to waterloo. those are the only two serious options, right now.

but, i'm going to need to exhaust my options on appeal, first. that will likely take a long time. i guess if it happens i'll have to put my things in storage and hitchhike down there and live in shelters until i find something.... then i'll have to ship my things from windsor to toronto....

yeah.

seems like that's right.

well, here's the thing - i came here because it was cheap. and, it was cheap because nobody wanted to live here because there aren't any job opportunities.

if the housing situation in windsor is going to stay like this because it's become a magnet for migrants, i might have to migrate somewhere else.

http://windsorstar.com/news/local-news/a-year-later-almost-1000-syrians-at-home-in-windsor

you know, i have to wonder if the low vacancy rate here is a consequence of the high number of refugees that were settled here. it's less that prices have gone up and more that vacancy rates have gone down.

i was actually hoping that an influx of refugees would lead to an increase in public housing, but that hasn't happened; instead, vacancy rates have just decreased.

nor, did i expect windsor - which has the highest unemployment rate in the country - to be a prime destination for settlement. why would you put refugees in an area of high unemployment?

well, unless you want to increase rent. but, that's market theory. and, market theory is bullshit. again: the prices really aren't higher, there's just nowhere to move to.

but, these people don't want what i want. they want to generate income. they want fancy houses. they want to send their kids to school. so, they're apparently moving west in large numbers - where they're told there's more economic opportunity.

again: i don't really think that increasing immigration is going to solve the country's economic problems. but, at the least, let's bring in wealthy immigrants. bringing in refugees is just always going to be a net drain.

and, no, it's not their fault. they took an opportunity. blame the government, not the refugees. and, don't even blame the government for bringing them here - blame the government for not investing in them properly, once they did.