The case of After Discovered Evidence

Posted: February 01, 2017
By: Global Legal Services

The Landlord submit as follows:

1.         The landlord requests a review of the order of the Member dated August 2016 based upon an error of fact which is material to the decision and is demonstrated by new evidence that was not before the Member. 

2.         The landlord submits that he did not have access to the evidence at the time of the hearing and the new evidence is necessary to properly decide the case.

THE LAW and FACTS

3.         In August 2016, the parties attended at a review hearing requested by the tenant.  The review hearing was held to review the order of the Member dated April 2016

4.         The tenant did not attend in person and was represented by her paralegal.

5.         At the commencement of the hearing, the tenant’s paralegal requested that the tenant be allowed to attend via telephone conference.  The Member granted the request and the tenant attend the hearing by telephone.

6.         After hearing the evidence of the tenant, the Member granted the review and proceed with the hearing.

7.         The main issue before the Board was whether the Board had jurisdiction to hear the landlord’s application, the determining factor being……was the tenant in possession of the rental unit at the time the landlord filed his application in March 2016.

8.         During the hearing, the tenant’s legal representative provided the Board with a signed document dated March 2016 signed by the condo concierge which stated that he had a “walk through of the unit to verify the condition”. 

9.         The landlord’s legal representative argued that the document made no mention of keys nor did it provide any notice that the tenant was vacating the rental unit.  Further to this, the landlord provided the Member with emails from the tenant’s lawyer dated March 2016 confirming that he would attempt to get the keys to the landlord as soon as possible and providing confirmation that the tenant is no longer in the premises in March 2016

10.       Notwithstanding the arguments presented by the landlord’s representative, the Member determined at paragraph 6 that:

It was the evidence before me that the tenant vacated the rental unit in March 2016 when she returned the keys to the unit and the complex to the concierge.

11.       In August 2016, the landlord’s representative attended at the condo and obtained an affidavit confirming that the oral evidence provided by the tenant at the hearing was false.  The attached affidavit of the concierge confirms that contrary to the tenant’s representation, the tenant did not provide the keys to the concierge in March 2016.

12.       In support of this fact, the landlord submits the affidavit of the concierge confirming that he did not receive the keys from the tenant in March 2016.  The evidence of the concierge was not available at the hearing due to the fact that the tenant did not disclose the March 2016 document prior to the review hearing and the landlord had no prior notice that the tenant would misrepresent facts in order to obtain a favorable decision from the Board,

13.       The landlord submits that the Member was misled by the tenant’s misrepresentation that she returned the keys in March 2016 and that this determination was material to his decision that the tenant was no longer in possession of the rental unit when the landlord filed his application in March 2016.

14.       The landlord further submits that absent of the tenant’s misrepresentation, the balance of probabilities would have been in favour of the landlord and the application of the landlord would have proceeded to a full hearing.

CONCLUSION

15.       In light of the arguments submitted herein, it is respectfully requested that the review order of the Member dated August 2016 be set aside and the application of the landlord be granted or in the alternative, proceed to a hearing.

16.       The landlord further request that in light of the fact that the tenant clearly and knowingly misled the Board by being reckless about the truthfulness of her evidence, the Board should order party costs against the tenant in the amount of $1,500.00 and Board costs against the tenant in the amount of $2,000.00 payable forthwith.

Posted under Case Study
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