Manpel v. Greenwin Property Management et al., (2005) 205 O.A.C. 72 (DC)

• Judge: Meehan, Molloy and Swinton, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: November 25, 2005
• Jurisdiction: Ontario
• Citations: (2005), 205 O.A.C. 72 (DC)

Manpel v. Greenwin Prop. (2005), 205 O.A.C. 72 (DC)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. DE.020

Manpel (appellant) v. Greenwin Property Management et al. (respondent)

(290/04)

Indexed As: Manpel v. Greenwin Property Management et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Meehan, Molloy and Swinton, JJ.

November 25, 2005.

Summary:

A tenant filed an application with the Ontario Rental Housing Tribunal that his landlord had sent him a form of notice which constituted a threat, intimidation, obstruction and coercion contrary to s. 35 of the Tenant Protection Act. Following receipt of the tenant's evidence, the Tribunal dismissed the application on a non-suit motion on the ground that the tenant failed to establish a prima facie case. The tenant appealed, submitting that (1) he was denied a fair hearing; (2) the Tribunal had no jurisdiction to dismiss an application for want of a prima facie case; and (3) even if such jurisdiction existed, the evidence established a prima facie case.

The Ontario Divisional Court, in a judgment reported (2005), 200 O.A.C. 301, allowed the appeal and ordered a new hearing on the basis of a breach of natural justice and denial of procedural fairness where the tenant was not afforded an opportunity to respond to the non-suit motion. The court awarded the tenant his reasonable partial indemnity costs.

The Ontario Divisional Court subsequently assessed reasonable partial indemnity costs plus allowable disbursements at $4,715.37.

Landlord and Tenant - Topic 7196

Regulation - Appeals - Costs - A tenant successfully appealed a decision of the Ontario Rental Housing Tribunal and was awarded his reasonable partial indemnity costs - The tenant had extensive legal advice, but represented himself on appeal - The tenant claimed costs of $30,000 to $40,000 - The Ontario Divisional Court assessed partial indemnity costs at $1,500, plus disbursements of $3,215.37 (including $2,105.87 for the cost of the transcript of the Tribunal proceedings), for a total of $4,715.37 - The court stated that "I see no reason to deny legal fees for reasonable preparation costs merely because counsel did not appear on the appeal itself. Indeed, it is of enormous assistance to the court if lay litigants who argue their own cases at least get some prior advice on legal issues and procedures as well as legal assistance in drafting legal documents such as notices of appeal and factums".

Practice - Topic 7050

Costs - Party and party costs - Entitlement to party and party costs - Successful party not represented by counsel - [See Landlord and Tenant - Topic 7196 ].

Cases Noticed:

Korhani v. Bank of Montreal et al., [2002] O.T.C. 965 (Sup. Ct.), refd to. [para. 6].

Boucher et al. v. Public Accountants Council (Ont.) et al. (2004), 188 O.A.C. 201 (C.A.), refd to. [para. 8].

Moon v. Sher, [2002] O.J. No. 45651 (C.A.), refd to. [para. 8].

Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, [2005] O.A.C. Uned. 83 (C.A.), refd to. [para. 8].

Counsel:

Larry I. Manpel, on his own behalf;

Martin P. Zarnett, for the respondent, Greenwin Property Management.

This matter was heard before Meehan, Molloy and Swinton, JJ., of the Ontario Divisional Court.

On November 25, 2005, Molloy, J., delivered the following judgment on costs for the Divisional Court.