COURT FILE NO.: 53/05

DATE: 20050316

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, CAPUTO AND SWINTON JJ.

B E T W E E N:

MICHAEL SEDLEZKY, SONYA SEDLEZKY and 1616368 ONTARIO INC.

Applicants

• and -

LISA JEFFREY

Respondent

J. William Gullett, for the Applicants

Seana Moorhead, for the Respondent

Anita L. Lyon, for the Attorney General for Ontario

HEARD at Toronto: March 16, 2005

swinton J.: (Orally)

1The applicants have brought an application for judicial review of a decision of the Ontario Rental Housing Tribunal, dated October 29, 2004.

2The Tribunal found that the rental unit in question is a site in a trailer park and that Ms. Jeffrey, the tenant, has rented and lived on the site on a year-round basis for over two years. Therefore, the Tribunal ordered that the Tenant Protection Act applies. In addition, it ordered that the landlords must refrain from issuing any notice of termination which does not comply with the Tenant Protection Act, 1997; the landlords must refrain from interfering with the supply of utilities, except in accordance with the Tenant Protection Act, 1997 and the landlord shall pay to the tenant $45.00 for the cost of filing the application.

3Section 196 of the Tenant Protection Act, 1997, provides for a right of appeal to the Divisional Court only on a question of law. However, Rule 27 of the Ontario Rental Housing Tribunal, made pursuant to s.195 of the Tenant Protection Act, 1997 and s.21.2 of the Statutory Powers Procedure Act, 1997, permits a party to request a review of any order which finally disposes of an application. Pursuant to Guideline 8, a person may request a review if there is a serious error, including an error of fact which was material to the decision and an error of fact which is material to the decision which is demonstrated by new evidence which was not before the Member.

4Judicial review is a discretionary remedy. In Harelkin v. University of Regina, 1979 18 (SCC), [1979] 2 S.C.R. 561, the Supreme Court of Canada held that courts should not intervene on an application for judicial review where the applicant has not availed himself or herself of internal rights of appeal.

5The applicants failed to exercise their statutory right to appeal on a question of law pursuant to s.196 of the Tenant Protection Act. As well, the applicants have the right under s.195 of the Tenant Protection Act and Rule 27 of the Tribunal Rules to request a review of the decision of the Tribunal on grounds of either error of law or fact or both. They did not exercise this right.

6In an application for judicial review, the reviewing court looks at the record of proceedings to determine whether there has been an error of law on the face of the record. In our view, there is no error of law on the face of the record. Section 7 of the Tenant Protection Act gives the Tribunal the jurisdiction to determine if a unit falls under the Act. It reads:

7.(1) A landlord or a tenant may apply to the Tribunal for an order determining,

(a) whether this Act or any provision of it applies to a particular rental unit or residential complex;

(b) any other prescribed matter.

(2) On the application, the Tribunal shall make findings on the issue as prescribed and shall make the appropriate order.

7In the Tenant Protection Act, rental unit is defined as living accommodation used or intended for use as a rented residential premise and includes a mobile home site. In s.1 of the Act, the terms “mobile home” and “mobile home park” are defined as follows:

“mobile home” means a dwelling that is designed to be made mobile and that is being used as a permanent residence; (“maison mobile”)

“mobile home park” means the land on which one or more occupied mobile homes are located and includes the rental units and the land, structures, services and facilities of which the landlord retains possession and that are intended for the common use and enjoyment of the tenants of the landlord. (“parc de maisons mobiles” )

8The Tenant Protection Act, 1997 has been passed to deal with residential premises. Section 2 provides:

(1) This Act applies with respect to rental units in residential complexes despite any other Act and despite any agreement or waiver to the contrary.

(4) If a provision of this Act conflicts with a provision of another Act, other than the Human Rights Code, the provisions of this Act apply.

9The Tribunal Member therefore had jurisdiction to make the factual determination whether the Tenant Protection Act applied to a particular rental unit or mobile home park.

10For these reasons, the application for judicial review is dismissed.

O’DRISCOLL J.

11With the concurrence of my colleagues I have endorsed the back of the application record as follows: “This application is dismissed for the oral/recorded reasons of even date given for the Court by Swinton J. We have received a bill of costs from counsel for Ms. Jeffrey – it is in the amount of $5,500.00 for fees and $165.20 for disbursements. Counsel for the applicants submits that $3,500.00 would be reasonable. Costs of this application for judicial review are

fixed at $3,500.00 plus disbursements plus G.S.T., payable by the applicants to the respondent within 30 days of this date.”

O’DRISCOLL J.

CAPUTO J.

SWINTON J.

Date of Reasons for Judgment: March 16, 2005

Date of Release: April 12, 2005

COURT FILE NO.: 53/05

DATE: 20050316

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT