COURT FILE NO.: 685/02
DATE: 20040303
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, CARNWATH AND SWINTON JJ.
B E T W E E N:
MICHAEL JOHN BRENNAN, ELIZA DOWNEY AND MICHAEL J. MCQUAID Tenants/Respondents (Appellants)
- and -
JASPER HOMES Landlord/Applicant Respondent in Appeal
Counsel:
David S. Strashin, for the Tenants/Appellants, Michael John Brennan and Eliza Downey
Kenneth H. Page, for the Landlord/Applicant, Respondent in Appeal
HEARD: March 3, 2004
Oral Reasons for Judgment
CARNWATH J.: (Orally)
[1] The appeal is denied.
[2] The appellants submit there was an obligation on the Tribunal to call Elsa Scruton at the hearing. The submission is based on the Tribunal’s comment at the opening of the hearing that her evidence was “crucial”. However, subsequently the Tribunal concluded her evidence was unnecessary.
[3] Secondarily, the appellants submit that for general completeness and fairness to the appellants, the Tribunal should have called Elsa Scruton. We reject this submission. Once having heard the evidence of Ms. Downey, there was no obligation to call Elsa Scruton.
[4] The appellants further submit the Tribunal failed to consider evidence which tended to show the landlord knew or ought to have known of the unauthorized transfer well before the time required to bring the application. We reject this submission.
[5] The Tribunal accepted the evidence of the landlord that it learned of the unauthorized occupancy from the neighbour in August, 2002.
[6] The respondent seeks an order terminating the Scruton tenancy. We deny this relief for two reasons. Firstly, the relief is outside the Tribunal decision appealed from. There was no cross-appeal. Secondly, an unauthorized transfer permits the landlord to evict the unauthorized occupant but the tenancy is not affected. See Samuel Property Management Ltd. v. Nicholson and Federation of Metropolitan Toronto Tenants’ Association, 2002 45065 (ON CA), 61 O.R. (3d) 470, (C.A.).
THEN J.
[7] The appeal is endorsed as follows: “The appeal is dismissed for reasons by the Court delivered orally by Carnwath J. The stay of eviction is lifted but eviction will not be executed until March 31, 2004. Costs to the respondent fixed in the amount of $2,000, payable also by March 31, 2004.”
THEN J.
CARNWATH J.
SWINTON J.
Date of Reasons for Judgment: March 3, 2004
Date of Release: March 8, 2004
COURT FILE NO.: 685/02
DATE: 20040303
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, CARNWATH AND SWINTON JJ.
B E T W E E N:
MICHAEL JOHN BRENNAN, ELIZA DOWNEY AND MICHAEL J. MCQUAID Tenants/Respondents (Appellants)
- and -
JASPER HOMES Landlord/Applicant Respondent in Appeal
ORAL REASONS FOR JUDGMENT
CARNWATH J.
Date of Reasons for Judgment: March 3, 2004
Date of Release: March 8, 2004