Court File and Parties
Court File No.: 187/07
Released: 20080910
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Re: SYLVIA BIELAK, Appellant
- and -
ANTHONY CLARKE, Respondent
Before: Carnwath, Swinton and Karakatsanis JJ.
Counsel: Bryan B. Skolnik for the Appellant Tracy Heffernan for the Respondent
Heard at Toronto: September 8, 2008
ENDORSEMENT
[1] This is an appeal from a decision of the Landlord and Tenant Board (the “Board”) dated March 23, 2007 dismissing the landlord’s application for an order to terminate a tenancy for the landlord’s use. This was the third such application involving Mr. Clarke’s apartment.
[2] On January 17, 2002, the Ontario Rental Housing Tribunal (the “Tribunal”) determined the first application to terminate Mr. Clarke’s tenancy for personal use. The application was brought by the landlord 1461313 Ontario Ltd. (“the numbered company”). That application was dismissed for three reasons, the most important for purposes of the present appeal being that the landlord, a corporation, could not file for termination under s. 51 of the Tenant Protection Act.
[3] Marsha Bielak, as landlord, filed a second application, which was decided June 6, 2002 with further reasons June 14, 2002. The Tribunal found Marsha Bielak to be a 50% owner of the property and, therefore, the landlord. The member also determined that the landlord, in good faith, required the premises for her daughter Sylvia and rejected the tenant’s defence of res judicata.
[4] An appeal from this decision was allowed by the Divisional Court on October 28, 2003. The Court held that the Tribunal erred in law in finding that Marsha Bielak and the numbered company were not the same parties for purposes of the doctrine of res judicata. The Tribunal also erred in failing to consider if Marsha Bielak was a privy of the numbered company and the member failed to weigh the evidence regarding good faith.
[5] The current application, dated November 8, 2006, was brought by Sylvia Bielak as landlord, seeking the unit for her own use. There was evidence before the Board that the tenant was told to start paying rent to Marsha Bielak as of November 1, 2006 and not to the numbered company. While he did so, his November cheque was deposited to the credit of the numbered company.
[6] The Board dismissed the application on March 23, 2007, relying on the doctrine of issue estoppel. The Board found that Marsha Bielak was a privy of the numbered company, the applicant in the 2002 proceeding, and the same question was determined in the earlier proceeding. The Board acknowledged that it had a discretion whether to apply issue estoppel, but declined to exercise that discretion in the circumstances.
[7] The appellant submits that the Board erred in law in applying issue estoppel and denied procedural fairness by failing to give adequate reasons.
[8] An appeal lies to this Court on a question of law (Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 210). The standard of review on a question of law is correctness (Dollimore v. Azuria Group Inc., [2001] O.J. No. 4408 (Div. Ct.)).
[9] Nowhere in the record before us can we find any evidence about the ownership of the property in question. The only indication that Sylvia Bielak is the landlord is her self-designation in the application to terminate the tenancy.
[10] In the first application, the numbered company was described as the landlord. The Tribunal applied s. 51 of the TPA and the applicable jurisprudence to find that the numbered company could not apply for possession for personal use.
[11] In the second application, the landlord was described as Marsha Bielak. The Tribunal found her daughter Sylvia’s desire to occupy the unit to be bona fide. On appeal, the Divisional Court found that the Tribunal made three errors:
in finding that Marsha Bielak and the numbered company were not the same parties for the purposes of the doctrine of res judicata;
in failing to consider whether Marsha Bielak was a privy of the numbered company; and
in finding good faith, having failed to weigh and address the evidence of bad faith.
[12] It is important for our purposes to note that the Divisional Court was satisfied on the record before it that there had been no change in the building’s ownership from the time of the first application and that the rent was still being paid to the numbered company.
[13] In this third application, Sylvia Bielak is described as the landlord. The Board applied the doctrine of issue estoppel and dismissed the application.
[14] The doctrine of issue estoppel is properly applied here only if the landlord is the numbered company, as the only issue determined in the 2002 decision was that the numbered company, as landlord, could not invoke s. 51 of the TPA.
[15] The Divisional Court observed in 2003 that there had been no change in ownership and the rent continued to be paid to the numbered company. The Court concluded that the Tribunal erred in finding that Marsha Bielak and the numbered company were not the same parties for the purposes of the doctrine of res judicata
[16] Before the Tribunal on this application, there was no evidence that ownership of the property had changed. Rent continued to be paid to the numbered company until November, 2006. The November 2006 rent cheque was endorsed by Marsha Bielak but deposited to the credit of the numbered company.
[17] Notwithstanding that the third application was brought in the name of Sylvia Bielak, there is no evidence to displace the conclusion in the first application and in the Divisional Court decision that the numbered company is still the landlord. Accordingly, s. 51 is not available, as determined in the 2002 decision.
[18] While we may disagree with the analysis undertaken by the Board, we see no error of law in the result reached.
[19] While there is a residual discretion not to apply issue estoppel, there is no injustice in this case in applying that doctrine, given the absence of any cogent evidence concerning change in the ownership of the property. This is the fifth time this issue has been litigated. To subject the tenant to a further process while the ownership of the property has not been made clear approaches an abuse of process.
[20] Although the appellant argued that the reasons of the Board are inadequate, those reasons are sufficient to permit appellate review.
[21] Therefore, the appeal is dismissed. Costs to the respondent are fixed, as agreed by the parties, in the amount of $2,500.00, inclusive of GST and disbursements, payable within 30 days.
Carnwath J.
Swinton J.
Karakatsanis J.
Released: September , 2008