Clarke v. Bielak, 2003 CanLII 24494 (ON SCDC)

COURT FILE NO.: 420/02

DATE: 20031028

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BENOTTO S.J., DUNNET AND MEEHAN JJ.

B E T W E E N:

ANTHONY CLARKE Tenant (Appellant)

• and -

MARSHA BIELAK Landlord (Respondent)

Tracy Heffernan, for the Tenant (Appellant) David S. Strashin, for the Landlord (Respondent)

HEARD: October 28, 2003

ORAL REASONS FOR JUDGMENT

DUNNET J.: (Orally)

1This is an appeal under s. 196(1) of the Tenant Protection Act, S.O. 1997 c. 24 from an order issued on June 6, 2002 and amended on June 14, 2002 by adjudicator Gerald Taylor of the Ontario Rental Housing Tribunal granting an application for eviction based on the landlord’s own use.

2The appellant has lived in the premises since 1994. Since March 2001, he has paid rent to 1461313 Ontario Limited. The appellant was served with a Notice to Terminate for Landlord’s Own Use, dated August 21, 2001. The Notice stated that the landlord was 1461313 Ontario Limited and the rental unit was required by the respondent.

3The Statutory Declaration required under s. 70(1) of the Act was signed by the respondent and stated: “I require the rental unit at 158 Grace St., Third floor for my own use”.

4Following a hearing before adjudicator Elizabeth Beckett on January 15, 2002, the application was dismissed for the following reasons:

(a) The application was signed by the respondent and it was her daughter who wished to occupy the premises;

(b) The termination date on the Notice to Vacate was incorrect; and

(c) The landlord is a corporation and cannot occupy a residential unit under s. 51 of the Act.

5The appellant was served with a second Notice to Terminate, dated March 21, 2002, stating that the respondent was the landlord and the rental unit was required for a child. There was no change to the ownership of the building and rent was still paid to the numbered company.

6Following a hearing before adjudicator Taylor on June 4, 2002, the application for eviction was allowed because the adjudicator believed that the appellant required the rental unit in good faith.

7A Request to Review the order was refused by adjudicator Sonia Light on the basis that res judicata did not apply, because the first application was dismissed for technical reasons and in the second application, the respondent was correctly named.

8In our view, adjudicator Beckett made a finding of fact and law on the first application that the landlord was a numbered company and could not terminate the tenancy under s. 51(1) of the Act. The appellant did not appeal nor seek to review the decision.

9On the second application, adjudicator Taylor erred in law in finding that the respondent and the numbered company were not the same parties for the purposes of the doctrine of res judicata.

10In addition, he failed to consider whether the respondent was a privy of the numbered company.

11The appellant also raised the issue of bad faith before adjudicator Taylor. There was evidence that prior to serving the appellant with the Notice to Terminate, the respondent insisted on several occasions that the appellant must move, as he was not paying enough rent. Further, there was evidence of a dramatic increase in rent in the area.

12The Act is tenant-centered and a liberal approach should govern its interpretation in a manner consistent with its tenant protection focus. See Ontario Rental Housing Tribunal v. Metropolitan Toronto Housing Authority and Godwin (13 March 2002) (Ont. C.A.) [unreported] at paras. 14, 19.

13As this was a “no fault” application for eviction, we are of the view that there was an obligation on the tribunal to weigh and address the evidence of the good faith of the respondent in applying to evict the appellant. There is no indication in the record that he did so.

14Accordingly, the appeal is allowed. The orders of adjudicators Light and Taylor are set aside and the order of adjudicator Beckett dismissing the respondent’s application for eviction stands.

BENOTTO S.J.

15I have endorsed the appeal book as follows: “For orals reasons given on our behalf by Dunnet J., the appeal is allowed. The order of adjudicator Beckett stands. Costs to the appellant are fixed at $2,500 plus disbursements of $1,257.86 plus GST.”