) ) NUBERG v. DALE CONSTRUCTION, 2013 ONSC 586

CITATION : Nuberg and Dale Construction Ltd. v. Jamal, 2013 ONSC 586 DIVISIONAL COURT FILE NO.: 589/11 DATE: 20130124 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT ASTON, HERMAN AND RAY JJ. BETWEEN: ) ) NUBERG AND DALE CONSTRUCTION LTD. Landlord (Respondent) – and – ROMANA JAMAL AND MUHAMMAD JAMAL BAJWA Tenants (Appellants) )) )) )) )) ))))) Howard L.

Shankman , for the Landlord Charles Wagman , for the Appellants ) ) ) HEARD at Toronto: January 24, 2013 HERMAN J. (orally) [ 1 ] This is an appeal under s. 210 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 from a decision of a Landlord and Tenant Board, issued December 1, 2011.

The decision was made with respect to the landlord’s application to terminate the tenancy of the appellants following damage caused by a fire in their unit. [ 2 ] The appellants ask that the order made in the decision be set aside, that the respondent’s application to the Board be dismissed and that the damages award of $20,000 be vacated. [ 3 ] The appellant tenants submit that there were three errors of law with respect to: (

i) the Board’s conclusion that the fire was caused by the tenant’s negligence; (ii) the validity of the N5 Form; and, (iii) the award of $20,000 in damages. [ 4 ] We are unable to identify any errors of law with respect to the Tribunal’s findings with respect to the cause of the fire and the N5 Notice. The Tribunal’s conclusions in this regard were the result of findings of fact, based on the evidence of various witnesses.

The assessment of the credibility of the witnesses falls squarely within the domain of the Tribunal and is not reviewable under s. 210 of the Act . [ 5 ] The only errors of law we can identify relate to the issue of damages. The failure to consider material evidence is an error of law. There is no reference in the Tribunal’s reasons to the tenants’ uncontradicted evidence that they did some of the repairs.

[ 6 ] The second potential error is the Tribunal’s failure to rule one way or the other on the admissibility of the letter from the roofer, marked as Exhibit 11. However, there was evidence that there was damage to the roof caused by the fire.

The only real issue with respect to the letter at Exhibit 11 is whether the $19,000 estimate properly reflects the damage caused by the fire. [ 7 ] Even if the tenant is given credit for cleaning and painting the kitchen walls and even if the extent of the damage caused by the fire referred to in Exhibit 11 is substantially reduced, we are satisfied that there was ample evidence to support the Tribunal’s conclusion that the damages exceeded $20,000. [ 8 ] The appeal is therefore dismissed. ASTON J.

COSTS [ 9 ] With respect to the costs, in our view, the most important factors are the amount in issue and the principle of proportionality. I have endorsed the Appeal Book on behalf of the panel: The appeal is dismissed with oral reasons given and recorded. The tenants are to pay costs fixed at $2,500 all inclusive. HERMAN J. ASTON J. RAY J. Date of Reasons for Judgment: January 24, 2013 Date of Release: January 28, 2013 CITATION : Nuberg and Dale Construction Ltd. v. Jamal, 2013 ONSC 586 DIVISIONAL COURT FILE NO.: 589/11 DATE: 20130124 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT ASTON, HERMAN AND RAY JJ.

BETWEEN:

NUBERG AND DALE CONSTRUCTION LTD. Landlord (Respondent) – and – ROMANA JAMAL AND MUHAMMAD JAMAL BAJWA Tenants (Appellants) ORAL REASONS FOR JUDGMENT HERMAN J. Date of Reasons for Judgment: January 24, 2013 Date of Release: January 28, 2013