) ) FRASTELL PROPERTY MANAGEMENT INC. Respondent (Landlord) – v. –, 2013 ONSC 5896

CITATION : Frastell Property Management Inc. v. Jelley-Kasper, 2013 ONSC 5896 DIVISIONAL COURT FILE NO.: 556/12 DATE: 20130918 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT LAX, SACHS AND GRACE JJ. BETWEEN: ) ) FRASTELL PROPERTY MANAGEMENT INC. Respondent (Landlord) – and – KEVIN JELLEY-KASPER Appellant (Tenant) )) )) )) )) ))))))) Martin P. Zarnett, for the Respondent Richard Ferris , for the Appellant Brian A.

Blumenthal , for the Landlord and Tenant Board ) ) ) HEARD at Toronto: September 18, 2013 GRACE J. (oRALLY) [ 1 ] A June 30, 2012 incident resulted in competing applications before the Landlord and Tenant Board. After hearing six witnesses, the Board Member concluded that the tenant had assaulted the superintendent of 550 Jarvis Street, Toronto and therefore committed an illegal act.

He rejected the evidence of the tenant and a third party that the superintendent had initiated a physical confrontation by “body-checking” the tenant. [ 2 ] The Board Member granted the landlord’s application under s. 61 of the Residential Tenancies Act and terminated the tenancy but gave the tenant approximately one month to vacate his unit to allow the tenant to find alternative accommodation due to his health limitations. [ 3 ] The tenant appeals. The Residential Tenancies Act gives this Court limited jurisdiction. An appeal is only permitted on a question of law.

The tenant maintains that the Board Member committed such an error because he failed to consider all of the tenant’s circumstances as required by s. 83(1) and (2) of the Act before terminating the tenancy. In particular, the tenant maintains the Board did not consider: (

a) Whether or not there had been any problem with the tenant before; (

b) Whether or not the tenant had a criminal record; (

c) Whether or not the tenant had a history of violence; (

d) The tenant’s financial circumstances; and (

e) Whether it was crucial to the tenant, as a gay man, that he remain in his present unit because it was located in what he described

as a safe gay village. [ 4 ] The tenant argues before us that the Board committed an error of law by failing to consider those matters. Regrettably, this submission ignores the fact that either no or very limited evidence was adduced for the Board to consider on any of these factors. The Board considered s. 83 in the context of the evidentiary record before it. There was no error in law. [ 5 ] For these reasons, the appeal is dismissed. LAX J. [ 6 ] I have endorsed the back of the Appeal Book and Compendium as follows, “This appeal is dismissed for oral reasons given and recorded.

Costs to the landlord/respondent in the amount requested of $2,500, payable on or before March 18, 2014. The stay is lifted, but the Sheriff shall not enforce the Order of the Board until on or after November 1, 2013.” LAX J. SACHS J. GRACE J. Date of Reasons for Judgment: September 18, 2013 Date of Release: September 20, 2013 CITATION : Frastell Property Management Inc. v. Jelley-Kasper, 2013 ONSC 5896 DIVISIONAL COURT FILE NO.: 556/12 DATE: 20130918 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT LAX, SACHS AND GRACE JJ. BETWEEN:

FRASTELL PROPERTY MANAGEMENT INC. Respondent (Landlord) – and – KEVIN JELLEY-KASPER Appellant (Tenant) ORAL REASONS FOR JUDGMENT GRACE J. Date of Reasons for Judgment: September 18, 2013 Date of Release: September 20, 2013