Wamboldt v. Wellman, (2007) 232 O.A.C. 88 (DC)

• Judge: Cunningham, A.C.J.S.C., Meehan and Hill, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: November 27, 2007
• Jurisdiction: Ontario
• Citations: (2007), 232 O.A.C. 88 (DC)

Wamboldt v. Wellman (2007), 232 O.A.C. 88 (DC)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. JA.034

Charlene Wamboldt and Jody Wamboldt (tenants/appellants in appeal) v. William Wellman (landlord/respondent in appeal)

(DC-06-00080338-0000)

Indexed As: Wamboldt v. Wellman

Court of Ontario

Superior Court of Justice

Divisional Court

Cunningham, A.C.J.S.C., Meehan and Hill, JJ.

November 27, 2007.

Summary:

In November 2005, the Ontario Rental Housing Tribunal (ORHT) determined that a landlord breached his obligations under s. 24(1) of the Tenant Protection Act to keep the premises in a good state of repair and fit for habitation. An abatement of rent was ordered and the landlord was ordered to effect repairs. The landlord did not comply. One month later, the landlord applied to terminate the tenancy for non-payment of rent and because he intended to convert the premises to a non-residential use. The tenants filed a T6 Tenant Application About Maintenance seeking reimbursement for costs (heating thermostat) and for an abatement of rent (increased heating costs) resulting from the continuing, unrepaired deficiencies. The ORHT member determined that the tenants could not file another T6 application for noncompliance with the previous ORHT order, because the issue was res judicata. The member terminated the tenancy. The tenant's application for a review of that decision was dismissed for want of "serious error". The tenants appealed under s. 196 of the Tenant Protection Act.

The Ontario Divisional Court allowed the appeal, set aside the decision, and remitted the matter for a new hearing. Res judicata did not apply. The landlord's non-compliance with the 2005 ORHT order constituted a continuing breach of the landlord's s. 24(1) obligations giving rise to the right to relief from increased costs post-dating that order. The ORHT erred in treating the application as an attempt to enforce the 2005 ORHT order. The tenants had a right to seek relief from the consequences and costs of the continuing deficiencies which were not corrected as required by the 2005 order.

Editor's Note: With the death of the Honourable Mr. Justice Michael Meehan prior to the giving of this decision, the remainder of the presiding panel released its decision pursuant to s. 123(3) of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended.

Estoppel - Topic 377

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - When applicable - In November 2005, the Ontario Rental Housing Tribunal (ORHT) determined that a landlord breached his obligations under s. 24(1) of the Tenant Protection Act to keep the premises in a good state of repair and fit for habitation - An abatement of rent was ordered and the landlord was ordered to effect repairs - The landlord did not comply - One month later, the landlord applied to terminate the tenancy for non-payment of rent and because he intended to convert the premises to a non-residential use - The tenants filed a T6 Tenant Application About Maintenance seeking reimbursement for costs (heating thermostat) and for an abatement of rent (increased heating costs) resulting from the continuing, unrepaired deficiencies - The ORHT member determined that the tenants could not file another T6 application for noncompliance with the previous ORHT order, because the issue was res judicata - The ORHT member terminated the tenancy - The tenant's application for a review of that decision was dismissed for want of "serious error" - The tenants appealed under s. 196 of the Tenant Protection Act - The Ontario Divisional Court allowed the appeal, set aside the decision, and remitted the matter for a new hearing - Res judicata did not apply - The landlord's non-compliance with the 2005 ORHT order constituted a continuing breach of the landlord's s. 24(1) obligations giving rise to the right to relief from increased costs post-dating that order - The ORHT erred in treating the application as an attempt to enforce the 2005 ORHT order or a re-litigation of the matter - The tenants had a right to seek relief from the consequences and costs of the continuing deficiencies which were not corrected as required by the 2005 order.

Landlord and Tenant - Topic 7022

Regulation - Powers of board or officers (incl. rentalsman) - Abatement of rent - [See Estoppel - Topic 377 ].

Landlord and Tenant - Topic 7027

Regulation - Powers of board or officers (incl. rentalsman) - Respecting notice to quit or notice of termination - [See Estoppel - Topic 377 ].

Cases Noticed:

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1, refd to. [para. 27].

R. v. Grdic, [1985] 1 S.C.R. 810; 59 N.R. 61, refd to. [para. 27].

R. v. Duhamel, [1984] 2 S.C.R. 555; 57 N.R. 162; 57 A.R. 204, refd to. [para. 28].

Toronto (City) et al. v. Canadian Union of Public Employees, Local 79 et al. (2001), 149 O.A.C. 213; 55 O.R.(3d) 541 (C.A.), affd. [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291, refd to. [para. 29].

Minott v. O'Shanter Development Co. (1999), 117 O.A.C. 1; 42 O.R.(3d) 321 (C.A.), refd to. [para. 29].

Machin v. Tomlinson (2000), 138 O.A.C. 363; 51 O.R.(3d) 566 (C.A.), refd to. [para. 29].

Schweneke v. Ontario (Minister of Education) et al. (2000), 130 O.A.C. 93; 47 O.R.(3d) 97 (C.A.), refd to. [para. 32].

Cymbalski v. Alcorn (2006), 209 O.A.C. 47 (Div. Ct.), refd to. [para. 42].

Manpel v. Greenwin Property Management et al. (2005), 200 O.A.C. 301 (Div. Ct.), refd to. [para. 42].

Counsel:

D. Gordon Bent, for the appellants;

Thomas E. Cole, for the respondent.

This appeal was heard on September 10, 2007, at Newmarket, Ontario, before Cunningham, A.C.J.S.C., Meehan and Hill, JJ., of the Ontario Divisional Court.

On November 27, 2007, the following judgment was delivered by the Court.