Cymbalski v. Alcorn, (2006) 209 O.A.C. 47 (DC)

• Judge: Durno, Aston and Wilson, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: March 08, 2006
• Jurisdiction: Ontario
• Citations: (2006), 209 O.A.C. 47 (DC)

Cymbalski v. Alcorn (2006), 209 O.A.C. 47 (DC)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. MR.111

Paul Cymbalski and Jeanne Cymbalski (applicants/respondents on the appeal) v. Robert Alcorn (respondent/appellant on the appeal )

(DC-05-075497-00)

Indexed As: Cymbalski v. Alcorn

Court of Ontario

Superior Court of Justice

Divisional Court

Durno, Aston and Wilson, JJ.

March 9, 2006.

Summary:

The Ontario Housing Rental Tribunal allowed a landlord's application to terminate a tenancy. The tenants appealed. No transcript or tape recording was available for the proceedings due to a mechanical malfunctioning of the recording equipment.

The Ontario Divisional Court held that, in the absence of a transcript, the court could not determine the issues raised on the appeal. Therefore, the court allowed the appeal, set aside the decision and directed that the matter be remitted to the Tribunal to be reheard before a different Tribunal member.

Landlord and Tenant - Topic 7143

Regulation - Procedure - Procedural fairness - Requirement of - The Ontario Housing Rental Tribunal allowed a landlord's application to terminate a tenancy - The tenants appealed - No transcript or tape recording was available for the proceedings due to a mechanical malfunctioning of the recording equipment - The Ontario Divisional Court held that, in the absence of a transcript, the court could not determine the issues raised on the appeal (incl. bias, conduct of the proceedings) - Therefore, the court allowed the appeal, set aside the decision and directed that the matter be remitted to the Tribunal to be reheard before a different Tribunal member.

Cases Noticed:

Longhouse Village (Thunder Bay) Inc. v. Smolcec (2001), 143 O.A.C. 137 (Div. Ct.), appld. [para. 11].

Nimmo v. Toronto Housing Co., [2002] O.J. No. 3450 (Div. Ct.), appld. [para. 13].

McKenzie v. Supportive Housing in Peel (2005), 197 O.A.C. 63 (Div. Ct.), appld. [para. 14].

Manpel v. Greenwin Property Management et al. (2005), 200 O.A.C. 301 (Div. Ct.), appld. [para. 15].

Fisher v. Moir, [2005] O.J. No. 4479 (Div. Ct.), appld. [para. 15].

Counsel:

Robert A. Leck, for the respondent;

No other counsel listed.

This appeal was heard on March 8, 2006, before Durno, Aston and Wilson, JJ., of the Ontario Divisional Court. Wilson, J., released the following reasons for the court on March 9, 2006.