COURT FILE NO.: 04-DV-001053

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

CUNNINGHAM, A.C.J., HAMBLY, J., McLEAN, J.

B E T W E E N:

THERESE ARCHAMBAULT

Toby G. Young, for the Respondent, Archambault

Respondent/Tenant (Respondent in Appeal)

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SUNRISE SUITES HOLDINGS INC.

No one appeared

Applicant/Landlord (Respondent in Appeal)

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CITY OF OTTAWA

Appellant

Stuart J. Huxley, for the Appellant

HEARD: November 22, 2005.

IN THE MATTER OF AN APPLICATION to the Ontario Rental Housing Tribunal under section 69 of the Tenant Protection Act, 1997, S.O. 1997, c. 24, with respect to the premises known municipally as 1009-1240 Donald Street, Ottawa, Ontario K1J 8R7

The Court

R U L I N G

The Facts

1Sunrise Suites Holdings Inc. (Sunrise), owns an apartment building in the City of Ottawa (Ottawa). It entered into an agreement with Ottawa to set aside a designated number of units in its apartment building for tenants whose rent was supplemented based on need by Ottawa. Therese Archambault (Archambault) qualified for a rent supplement. She became a tenant of Sunrise in April 1997. She paid part of the monthly rent and the rest was paid by a supplement from Ottawa. In January 2004, Ottawa notified Archambault that she would be required to pay full rent from May 1, 2004 as a result of her failure to provide Ottawa a statement of her current financial circumstances. Sunrise served Archambault with a notice to terminate her tenancy. Archambault believed as a result of the intervention of her sister that Ottawa would reinstate her supplement. She did not defend the application of Sunrise to terminate her tenancy. Sunrise obtained an order on June 23, 2004 terminating Archambault’s tenancy which it proceeded to enforce. On July 14, 2004 Ottawa reinstated Archambault’s supplement in full and made payment of the arrears of rent to Sunrise. Archambault brought a motion before the Ontario Rental Housing Tribunal (OHRT or the Tribunal) to set aside the default order terminating her tenancy and to add Ottawa as a party. The Tribunal heard Archambault’s motion on August 18, 2004. In a decision dated September 1, 2004 the Tribunal set aside the default order. It also added Ottawa as a party and declared Ottawa to be a landlord under the Tenant Protection Act, 1997, S.O. 1997, c. 24.

2Ottawa appealed the decision of the Tribunal to Divisional Court. Ottawa gave notice prior to the argument of the appeal that the only part of the decision of the Tribunal which it sought to reverse was the Tribunal’s finding that it was a landlord. Although Archambault resumed occupancy of her apartment, she later vacated it. She is no longer a tenant of Sunrise. There are no arrears of rent owed by Archambault to Sunrise. There is no longer a dispute between Archambault and Sunrise.

Position of the Parties

3The relevant sections of the Tenant Protection Act, 1997, S.O. 1997, c. 24, are as follows:

1.(1) In this Act,

“landlord” includes,

(a) the owner of a rental unit or any other person who permits occupancy of a rental unit.

174. (1) The parties to an application are the landlord and any tenants or other persons directly affected by the application.

4The Tribunal added Ottawa as a party pursuant to s. 174(1) of the Act since it was “directly affected by the application”. Ottawa takes no objection to this. What offends Ottawa is the Tribunal finding it to fall within the definition of landlord as “any other person who permits occupancy of a rental unit”. Ottawa submits that it was Sunrise and not Ottawa that permitted Archambault to occupy an apartment owned by Sunrise. It points out the far-reaching consequences of its being found to be a landlord.

5In her factum, Archambault sought to uphold the Tribunal’s finding that Ottawa was a landlord. In argument counsel for Archambault took a neutral position. Archambault took the position both in her factum and in argument that the case was moot and the court should not hear Ottawa’s appeal.

Analysis

6The seminal case on the doctrine of mootness is a decision of the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 (S.C.C.). The Ontario Court of Appeal has considered Borowski in Tamil Co-operative Homes Inc. v. Arulappah (2002), 49 O.R. (3d) 566 (O.C.A.) and Jane Doe v. Canada (Attorney General) (2005), 75 O.R. (3d) 725 (O.C.A.).

7In Tamil, Justice Doherty quoted the following passage from Borowski:

14In Borowski, supra, at p. 353 S.C.R., p. 9 C.C.C., Sopinka J. defined mootness in these terms:

Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot.

8In the case before him he held that the Divisional Court erred in hearing an appeal which had become moot. He stated the following:

16…The parties remain adversarial only in the sense that they take different positions on the legal issues raised before the courts below. They are aptly described as opposing debaters taking affirmative and negative positions on legal propositions and not as litigants opposed in interest in an ongoing legal controversy. The appeal is moot.

9In this case the parties are not even adversarial on the only issue that was argued before us. Archambault is neutral on Ottawa’s position that the Tribunal erred in holding Ottawa to be a landlord.

10In Jane Doe, Justice LaForme stated the following:

21The general rule at common law is that courts should decline to decide cases that have become moot. Exceptions to the general rule may be demonstrated through a two-part test found in Borowski: (i) the court must determine whether the required tangible and concrete dispute between the parties has disappeared and the issues have become academic; and (ii) if the response to the first question is affirmative, the court must decide if it should nevertheless exercise its discretion to hear the case.

and

27Borowski provides direction and sets out three factors to be considered when deciding whether to exercise judicial discretion and hear a case that has become moot. The three factors are:

(1) Whether an adversarial relationship still exists between the parties.

(2) Whether special circumstances exist in the case so as to justify the expenditure of scarce judicial resources.

(3) Whether there is a need for the court to be sensitive to its role as the adjudicative branch in our political framework.

11The dispute between the parties that brought them before the Tribunal was whether or not Archambault’s tenancy with Sunrise should be terminated. Since Ottawa paid the arrears of rent by reinstating Archambault’s rent supplement before Archambault’s motion came before the Tribunal, apart from setting aside the default order, the case was moot before the Tribunal. There was no need for the Tribunal to add Ottawa as a party. Even more so, there was no need to find Ottawa to be a landlord.

12There was no adversarial or indeed any relationship between the parties at present. There are no special circumstances so as to justify the expenditure of scarce judicial resources. Whether or not Ottawa should be a landlord in the circumstances of this case is something best left to the legislature.

13We did hear argument from counsel for Ottawa. If required to decide the issue, we would be inclined to find that the Tribunal erred in law in finding Ottawa to be a landlord.

Conclusion

14The case is moot. The appeal is denied. We are of the view that it is not a case where costs should be awarded.

CUNNINGHAM A.C.J.

HAMBLY, J.

McLEAN J.

Released: November 30, 2005

COURT FILE NO.: 04-DV-001053

ONTARIO SUPERIOR COURT OF JUSTICE (DIVISIONAL COURT)

B E T W E E N:

THERESE ARCHAMBAULT

Respondent/Tenant (Respondent in Appeal)

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SUNRISE SUITES HOLDINGS INC.

Applicant/Landlord (Respondent in Appeal)

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