) ) ELIO PAVONE, MARISA PAVONE v. NICOLA PAVONE, 2013 ONSC 2964

CITATION : Pavone v. Sniedzins, 2013 ONSC 2964 DIVISIONAL COURT FILE NO.: 532/11 DATE: 20130521 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MOLLOY, LEDERER AND HOURIGAN JJ.

BETWEEN: ) ) ELIO PAVONE, MARISA PAVONE and NICOLA PAVONE Applicants (Appellants) – and – ERWIN SNIEDZINS and FLORA SNIEDZINS Respondents (Respondents in Appeal) )) )) )) )) ))))) Harold Rosenberg , for the Appellants In Person ) ) ) HEARD at Toronto: May 21, 2013 MOLLOY J. (orally) [ 1 ] An appeal lies to this Court from an order of the Landlord and Tenant Board, but only on a question of law: Residential Tenancies Act , 2006 , S.O. 2006, c. 17, s. 210. [ 2 ] In this case, the Landlord and Tenant Board dismissed the landlord’s claims because the Board Member found he was not satisfied on a balance of probabilities that the problems complained of by the landlord were caused by the tenants.

That is a clear finding of fact. Further, it is a factual finding that is completely understandable given the nature and extent of the evidence. [ 3 ] I see no error of law by the Member. Indeed, this is not even a question of mixed fact and law. [ 4 ] The Member applied the correct test and considered the evidence and correctly placed the burden on the landlord of proving its case on a balance of probabilities. [ 5 ] The Member’s reasons are adequate to allow appellate review and to demonstrate that the Member considered the evidence and applied the appropriate test.

The Member is not required to recite each and every piece of evidence nor to draw credibility findings that are unnecessary. The problem was causation. On the facts, the Member found this had not been proven. [ 6 ] Counsel for the landlord argues that the Board erred by failing to consider negligent conduct by the tenant in failing to alert the landlord to the mould problem in the southeast bedroom and failing to allow the landlord access to that room so that the mould problem could be remediated.

Counsel submits that this is an error of law. [ 7 ] First of all, the duty to warn or to permit access could only arise if the tenant was aware of the problem in that room. There was no evidence that the tenant did know there was a problem until after he obtained his own expert report in August 2010.

Accordingly, there is no factual foundation upon which a finding of negligence could be based. [ 8 ] Secondly, this is a question of fact, not law, and would require the Board to speculate, which the Board appropriately refused to do. [ 9 ] In the absence of any legal error, there is no basis for this Court to intervene. [ 10 ] Accordingly, the application is dismissed. COSTS [ 11 ] I have endorsed on the Record, “The tenant is entitled to recover costs in respect of disbursements only, for photocopying, binding, parking or other similar out of pocket expenses, upon providing receipts for same.

The tenant shall provide the receipts to counsel for the applicant by Friday, May 24, 2013. If costs cannot be resolved on consent, the tenant may make written submissions to the court by May 31 and the respondent within one week after the tenant’s submissions.” MOLLOY J. LEDERER J. HOURIGAN J. Date of Reasons for Judgment: May 21, 2013 Date of Release: May 24, 2013 CITATION : Pavone v. Sniedzins, 2013 ONSC 2964 DIVISIONAL COURT FILE NO.: 532/11 DATE: 20130521 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MOLLOY, LEDERER AND HOURIGAN JJ. BETWEEN:

ELIO PAVONE, MARISA PAVONE and NICOLA PAVONE Applicants (Appellants) – and – ERWIN SNIEDZINS and FLORA SNIEDZINS Respondents (Respondents in Appeal) ORAL REASONS FOR JUDGMENT MOLLOY J. Date of Reasons for Judgment: May 21, 2013 Date of Release: May 24, 2013