COURT FILE NO.: 596/07

DATE: 20090617

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LEDERMAN, KARAKATSANIS AND VAN RENSBURG

B E T W E E N:

TONY CAPUTO, FRANCO CARDINALE AND FRANCESCA CARDINALE

Appellants/Landlords

• and -

BARBARA NEWBERG

Respondent/Tenant

Martin P. Zarnett, for the Appellants/ Landlords

Allan S. Halpert, for the Respondent/ Tenant

HEARD at Toronto: June 17, 2009

LEDERMAN J.: (Orally)

1The appellant appeals the decisions of the Landlord and Tenant Board (the “Board”) dated November 9, 2007 (with additional reasons dated December 12, 2007), which dismissed an application for termination and eviction for the landlord’s own use and occupation and the order dismissing the appellant’s request to review an order dated December 11, 2007.

2The appellant applied to the Board to terminate the respondent’s tenancy and evict her on the basis that the appellant wanted to occupy the rental unit for his own use. The application was made in good faith by the landlord who has a genuine desire to move into the rental unit with his fiancée.

3The property has four rental units and is the only property owned by him. The tenant suffers from financial, physical and mental health challenges and relies upon her sister who occupies another rental unit in the building.

4The Board found: “on balance, the eviction of the tenant seems more unfair than denying the landlord his application to evict” and refused to grant the application pursuant to s.83(1) of the Residential Tenancies Act, 2006 S.O. 2006, c-17.

5The appellant submits that the Board member incorrectly interpreted s.83(1), or alternatively, exercised her discretion under s.83(1) of the Residential Tenancies Act unreasonably and contrary to law by refusing the eviction.

6An appeal to this Court is available only on a question of law. Applying the standard of review analysis to the nature of the issue in this appeal, we are satisfied that the standard of review is reasonableness. As noted in Dunsmuir v. New Brunswick 2009 SCC 9, [2009] S.C.J. No. 9 at paras. 54, 55 and 60, the standard of review for questions of law may depend upon the nature of the question of law. Where the question at issue is one of general law that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise, a standard of correctness will apply. Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function with which it will have particular familiarity. Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context. In this case, a specialized tribunal is exercising its discretion on the specific facts of this case under a section in its own enabling statute. The legal and factual issues are intertwined and cannot be readily separated. In all these circumstances, a standard of reasonableness applies.

7Section 83(1) of the Residential Tenancies Act reads as follows:

Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,

(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or

(b) order that the enforcement of the eviction order be postponed for a period of time.

8The appellant submits that having found that the application was made in good faith, the Board must grant the application except in exceptional circumstances such as misconduct by the landlord.

9The appellant accepts that the Board may consider and balance all the circumstances but submits that the Board erred in law by weighing the unfairness between the landlord and the tenant. The appellant submits that once the Board finds that it is unfair to the landlord to refuse, then the Board cannot rely on s.83(1)(a). The Board member cannot balance the unfairness to both, but only the circumstances of both.

10Finally, the appellant submits that the Board erred in law in considering that the appellant could live in one of the other units. While we would agree that pursuant to Salter v. Beljinac (2001) 2001 40231 (ON SCDC), 201 D.L.R. (4th) 744, para. 26 (Div. Ct.), this factor could not be considered in the determination of whether the application was made in good faith, the legislation does not preclude this as a consideration in considering whether to exercise discretion under s.83(1).

11The language of the section requires the Board to have regard to all the circumstances and there is no basis to preclude a consideration of unfairness to the tenant. Section 83(1) requires that the Board consider all the circumstances even if the Board member finds that the application is made in good faith.

12The legislature has given the Board broad discretion to refuse to grant an application for an order evicting a tenant, notwithstanding a finding that the application was made in good faith and that the landlord genuinely intends to occupy the residential unit.

13As stated in Salter v. Beljinac, supra, at para. 30:

“The Board member is entitled to weigh the overall circumstances relevant to the situation of both the landlord and the tenant to provide what the Tribunal perceives to be a fair result.”

14Reading the Board decision as a whole and bearing in mind that the Board member is not legally trained, we are satisfied that she did not fail to consider the landlord’s property rights or the absence of misconduct.

15Once the Board member has made her findings under s.83(1), having considered all the circumstances, as in this case, a court on appeal should afford the member’s decision a great deal of deference.

16We are satisfied that the Board member made no error in principle, considered relevant circumstances and her decision is not unreasonable. The appeal is therefore dismissed.

17I have endorsed the Record to read: “The appeal is dismissed for oral reasons delivered. The respondent will have her costs fixed at $3,500.00.”

LEDERMAN J.

KARAKATSANIS J.

VAN RENSBURG J.

Date of Reasons for Judgment: June 17, 2009

Date of Release: June 23, 2009

COURT FILE NO.: 596/07

DATE: 20090617

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT