Barker v. Park Willow Dev., (2004) 188 O.A.C. 276 (DC)

• Judge: O'Driscoll, Matlow and Jennings, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: July 12, 2004
• Jurisdiction: Ontario
• Citations: (2004), 188 O.A.C. 276 (DC)

Barker v. Park Willow Dev. (2004), 188 O.A.C. 276 (DC)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. JL.021

Carole Ann Barker and Walter E. Totzek (applicants/respondents in appeal) v. Park Willow Developments (respondent/appellant)

(No. 180/03)

Indexed As: Barker et al. v. Park Willow Developments

Court of Ontario

Superior Court of Justice

Divisional Court

O'Driscoll, Matlow and Jennings, JJ.

July 12, 2004.

Summary:

Tenants applied under s. 142 of the Tenant Protection Act for a reduction of rent be­cause they could not use their balconies during balcony restorations conducted by the landlord.

The Ontario Rental Housing Tribunal allowed the application. The landlord ap­pealed.

The Ontario Divisional Court allowed the appeal without costs. The court remitted the matter to a different member of the Tribunal to hear evidence to determine the amount of rent reductions payable to the tenants.

Landlord and Tenant - Topic 3885

Rent - Abatement of rent - Quantum - Section 30(2) of Ontario Regulation 194/98 (adopted pursuant to the Tenant Protection Act) provided: "If a service or facility is discontinued, the rent shall be reduced by an amount that is equal to what would be a reasonable charge for the service or facility based on the cost of the service or facility to the landlord or, if the cost can­not be determined or if there is no cost, on the value of the service or facility" - In the present case, balconies were being restored and tenants could not use them during the restoration, hence an application for reduc­tion of rent - The landlord presented evi­dence as to its cost - The Ontario Rental Housing Tribunal did not accept the land­lord's evidence, determined the "value" of the facility discontinued and granted a reduction of rent based on "value" - The Ontario Divisional Court quashed the Tribunal's decision where the reduction granted was not based on any evidence of "value" put before the Tribunal and where the Tribunal denied the parties natural justice in failing to give the parties an opportunity to provide relevant evidence regarding "value".

Cases Noticed:

Best Rank Investments Inc. v. Tenants of 3161 Eglinton Avenue East, Scarborough (1990), 42 O.A.C. 15; 73 D.L.R.(4th) 371 (Div. Ct.), consd. [para. 14].

355 and 365 Grandravine Holdings Ltd. v. Pacini et al. (1991), 54 O.A.C. 380; 8 O.R.(3d) 29 (Div. Ct.), consd. [para. 15].

Statutes Noticed:

Tenant Protection Act Regulations (Ont.), Regulation 194/98, sect. 30(1), sect. 30(2) [para. 7].

Counsel:

J.J. Hoffer, for the appellant/landlord;

Carole A. Barker, in person;

Walter E. Totzek, in person.

This appeal was heard on May 10, 2004, by O'Driscoll, Matlow and Jennings, JJ., of the Ontario Divisional Court.

The decision of the Divisional Court was delivered by O'Driscoll, J., and released on July 12, 2004.