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LTB Awards Paltry General Damages for Illegal Lock-out

. Beseiso v. Presendieu

In Beseiso v. Presendieu (Div Court, 2022) the Divisional Court considered the amount of general damages awarded by the LTB for illegal lock-out. The case (and cases cited) are noteable for the low quantum awarded ($5,000 ordered in this case, but $2,500 deemed average) - amounts that some landlords may view as an acceptable 'cost of business' in getting rid of an unwanted tenant. It's hard to imagine these low volumes being awarded in a Superior Court lawsuit, which it is entirely possible to bring in similar future cases [under the RTA 207(2)]:
[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 CanLII 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 CanLII 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.



Latest Guide:

Judicial Review (Ontario) Legal Guide (22 August 2022)




Administrative Law Is Second-Class Law


In Carr v. Brown (Div Court, 2022) the Divisional Court allowed two appeals of two LTB virtual (ZOOM) eviction applications that were decided in a highly confused procedure, one that the court characterized as "haphazard, confusing" [para 40]. The problem seems to have arisen from the member's attempt to hear the two related applications together 'to save time', but by excluding the separate tenants from portions of the case that supposedly didn't involve them. The result was legally ludicrous, for example inviting a tenant to cross-examine on direct examination that they had been excluded from hearing [para 32]. The court held that the hearing procedure was procedurally unfair, and also an error of law - which allowed it to apply RTA S.210 granting the appeals.

As the court recognized in the presently desperately harsh rental market in Canada today:
The right to be heard is particularly important in the context of the Landlord and Tenant Board because housing decisions can have a profound impact on all aspects of an individual’s life.
Most tenants don't have the knowledge or resources to commence a s.210 Divisional Court appeal, these were among the lucky few that did (one tenant was represented, the other not). How many others have 'fallen through the legal cracks'? Meanwhile, corporations suing other corporations for their millions get the full natural justice procedural rights that our legal system can avail itself of at public expense in the traditional courts. What's wrong with this picture?



Disturbing Divisional Court Tenancy Case


This is a disturbing case from the courts on 13 April 2022. By all appearances the self-repped appellant was unfamiliar with the practice from the Browne v Dunne rule (UK, 1893) that you first have to 'put' your intended contradictions to a witness before you can call evidence to impeach them - that's why she couldn't have her evidence admitted. Instead the crucially important issue of whether her rental was governed by the RTA or not went against her (again), leaving her with the close-to-zero rights of a licensee or 'unauthorized occupant': Guillaume v. Barney Rivers Investments Ltd. (Div Ct, 2022).



Latest Guide:

Civil Appeals (Ontario) Legal Guide (22 August 2022)



Important Land Lease and Trailer Park Case

In White v Upper Thames Conservation Authority (Ont CA, 2022) the court affirmed that when the Residential Tenancies Act (RTA) applied to a land lease (and necessarily a trailer park) tenancy that provisions that attempted to seasonally restrict occupancy were void under the non-waiver provisions of the Act.



Judge Gets Caustic About Excess Legislation

[36] In Canada (National Revenue) v. McNally, 2015 FCA 248 at paragraph 5, the Federal Court of Appeal urged reviewing courts to prudently exercise their discretion to hear moot cases given that “the task of courts…is to pronounce on legal principles only to resolve a real dispute.” Judicial pronouncement of legal principles in the absence of a real dispute, the Court noted, “can smack of gratuitous law-making, something that is reserved exclusively to the legislative branch of government.” [SS: it's Stratas JA (who else?), quoted by McWatt A.C.J.S.C.J.]
Chief Animal Welfare Inspector v. Timothy Jackson and the Animal Care Review Board (Div Ct, 2022)



Latest Guide:

Social Housing (Ontario) Legal Guide (23 November 2021)




Latest Guide:

PAWS (Provincial Animal Welfare Services Act) Legal Guide (01 October 2021)




Self-Representer Considering Appeal? Read this.


. Narwhal International Limited v. Teda International Realty Inc.

In Narwhal International Limited v. Teda International Realty Inc. (Ont CA, 2021) the Court of Appeal usefully summarizes the limitations of an appeal that are often misunderstood by self-representers:
[14] Unfortunately, the appellant misunderstands the function of an appellate court. It is not this Court’s responsibility to conduct a second trial. In the absence of a palpable and overriding error in the application judge’s assessment of the evidence, an appellate court must accept the judge’s findings of fact. A palpable and overriding error is an “obvious error that is sufficiently significant to vitiate the challenged finding of fact”: Longo v. MacLaren Art Centre, 2014 ONCA 526, [2014] O.J. No. 3242, at para. 39. It has also been said that:
A palpable error is one which is clear to the mind or plain to see, so obvious that it could be easily seen or known or readily or plainly seen. An overriding error is one which had a sufficiently decisive effect, such that it would justify intervention and review on appeal: 1632093 Ontario Inc. (Turn-Key Projects) v. York Condominium Corporation No. 74, 2020 ONCA 843, 328 A.C.W.S. (3d) 66, at para. 1.



Latest Update: The Small Claims Filing and Issuing Portals

Ch.6, s.10. The Filing and Issuing Portals (SCCES and SCCSO) (20 June 2021)




Latest Guide:

Motor Vehicle Dealing (Ontario) Legal Guide
(20 June 2021)



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