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Section 52 of the Mortgages Act does not conflict with the Residential Tenancies Act.
The appellant bank held a mortgage on a condominium owned by the respondent, who defaulted.
After default, the respondent leased the property to another respondent on highly favourable terms.
The bank applied under s. 52 of the Mortgages Act to set aside the tenancy.
The application judge dismissed the application, finding a conflict between s. 52 of the Mortgages Act and the Residential Tenancies Act.
The Court of Appeal allowed the appeal, holding that there is no conflict because setting aside a tenancy agreement under the Mortgages Act means the tenancy never existed, whereas terminating a tenancy under the Residential Tenancies Act brings a valid tenancy to an end.
Landlord must live in the building at the start of the tenancy for the shared accommodation exemption to apply.
The tenant appealed two orders of the Landlord and Tenant Board which dismissed his applications on the basis that the Board lacked jurisdiction.
The Board had found that the tenancy was exempt from the Residential Tenancies Act under section 5(i) because the landlord either moved into the shared accommodation after the tenancy began or intended to do so from the start.
The Divisional Court allowed the appeal, holding that for the section 5(i) exemption to apply, the landlord must actually live in the building at the time the tenancy agreement is entered into.
The matter was remitted to the Board for a new hearing.
