COURT FILE NO.: 578/02

DATE: 20021015

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN, COO AND MACDONALD JJ.

B E T W E E N:

PATRICIA MELHUISH, GEORGE WALSH Appellants

• and -

580472 ONTARIO LTD., DAVID STRELCHUK Applicants

COUNSEL: David S. Strashin, for the Appellants Justin W. de Vries, for the Applicants

HEARD: October 15, 2002

ORAL REASONS FOR JUDGMENT

COO J.: (Orally)

1This appeal, limited to questions of law by reason of s.196(1) of the Tenant Protection Act, will be dismissed, essentially because the reasons given by the Ontario Rental Housing Tribunal were sensible and entirely supportable, both factually and legally.

2The applicant Strelchuk agreed to sell the condominium unit to a person who statutorily declared he required it for personal use. The co-applicant company was the registered owner but held in trust under typical commercial arrangements for Strelchuk who could sell as he wished.

3In our view there is nothing in the argument that there has been deprivation of natural justice because there is no tape of the proceeding below. There is no statutory or regulatory obligation to tape the proceedings of the Tribunal, given Rule 21(2) of the Tribunal's Rule of Practice; and nothing in the Act that deals with such failure and nothing before us to suggest that by reason of the absence of the tape there existed denial of natural justice or the serious possibility of a denial or interference with any ground of appeal.

4Section 71 of the Act requires a declaration from the purchaser certifying that he or she in good faith requires the rental unit for his or her own personal use as a condition precedent to the granting of an order terminating the tenancy because the owner has sold the premises. It does not require explicitly or implicitly that the purchaser in a contested application give viva voce testimony on the subject.

5The appellant could have arranged to summons the purchaser to be cross-examined and chose not to do so despite reasonable opportunity. No evidence was apparently offered by the appellant on the subject.

6In our view the Tribunal adequately dealt with the issue of discretionary relief from forfeiture under s.84 of the Act and there is no legal issue here since there is no requirement that the Tribunal deal specifically with the matter at all in a situation such as this where there is no hint of any reason for legitimate denial of a remedy to the applicants, certainly not on the basis of s.84(2).

7Given the interpretative language in the provisions of s.188 of the Tenant Protection Act it is clear that Mr. Strelchuk was the beneficial owner of the premises and was a landlord under s.11 of the Act.

8Section 52(1.1) of the Tenant Protection Act deals specifically with a situation presented here in stating:

"If a landlord who is an owner as defined in clause (a) or (b) of the definition of "owner" in subsection 1(1) of the Condominium Act, 1988 owns a unit, as defined in subsection 1(1) of that Act that is a rental unit and has entered into an agreement of purchase and sale of the unit, a landlord, may on behalf of the purchaser, give the tenant of the unit a notice terminating the tenancy, if the purchaser in good faith requires possession of the unit for the purpose of residential occupation by the purchaser".

9The relevant definition of owner under the Condominium Act as found in s.1(1)(a) is:

"Owner means in relation to a corporation other than a leasehold condominium corporation or a common elements condominium corporation, a person who owns a freehold interest in a unit and its appurtenant common interest and who is shown as the owner in the records of the land registry office in which the description of the corporation is registered."

10In this case it would appear that the numbered company applicant, now a respondent, was shown as the owner of the unit in the records of the land register. The facts that both the company and Mr. Strelchuk gave notice to terminate and were applicants and Mr. Strelchuk was the unfettered beneficial owner measured against the impact of s.188 produced the result that the statutory requirements above quoted were sufficiently and legitimately met. The legislative provisions should not be interpreted so as to leave the applicants here without their legitimate remedy.

THEN J.

11This appeal is dismissed for oral reasons delivered by Mr. Justice Coo: Taking into account the nature of the matter and the preparation which would reasonably be necessary, we are satisfied that costs be awarded to the respondent fixed in the amount of $5000 all inclusive of GST and disbursements payable forthwith.

12A writ of possession with respect to the premises to issue, effective October 30, 2002.

THEN J.

COO J.

MACDONALD J.

Date of Reasons for Judgment: October 15, 2002

Date of Release: November 6, 2002

COURT FILE NO.: 578/02

DATE: 20021015

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT THEN, COO AND MACDONALD JJ.

B E T W E E N:

PATRICIA MELHUISH, GEORGE WALSH Appellants

• and -

580472 ONTARIO LTD., DAVID STRELCHUK Applicants