Court File and Parties
CITATION: Belcourt Manor Inc. v. Collard, 2010 ONSC 1160
DIVISIONAL COURT FILE NO.: DC-08-1469
DATE: 20100216
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, HENNESSY AND MARANGER JJ.
BETWEEN:
BELCOURT MANOR INC. Applicant (Appellant)
– and –
CLAIRE COLLARD AND BERNADETTE COLLARD Respondents (Respondents in Appeal)
Counsel:
Roy Chamoun, for the Appellant
Suzanne Sabourin, for the Respondents in Appeal
HEARD at Ottawa: February 16, 2010
Reasons for Judgment
SWINTON J. (Orally):
[1] This is an appeal from a decision of the Landlord and Tenant Board issued November 4, 2008 which denied the appellant landlord’s application to evict the respondents. The Board found that the landlord had not established that it required possession of the rental unit to demolish it.
[2] The landlord gave a notice to terminate the respondents’ tenancy based on s.51(c) of the Residential Tenancies Act, 2006, S.O. 2006, c.17 - that is, the landlord required possession of the respondents’ unit to conduct repairs and renovations that were so extensive that the landlord required a building permit and vacant possession to carry out the renovations.
[3] The case was argued before the Board on the basis that this was a renovations case. In reviewing the evidence, the Board set out the basis for the tenants’ opposition to the application as follows, and I quote from paragraph 7 from the reasons:
Speaking for the tenants, counsel Kakomire Kashongwe opposed the application and took the position that the proposed work does not, under any circumstances, fall within the category of “demolition” in clause 51(a), but constitutes “renovations” which are contemplated in clause 51(c) of the Act.
[4] The planned renovation is extensive and will result in the conversion of the unit from two bedrooms to one bedroom. The Board found that the landlord was acting in good faith. However, despite the focus on s. 51(c) and renovations in the argument before it, the Board determined that the landlord’s application had not established that the landlord required the unit to effect a demolition, and the Board dismissed the application.
[5] An appeal lies to this Court only on a question of law (see the Residential Tenancies Act, s. 210(1)).
[6] In our view, the Board erred in law in failing to deal with the application and evidence before it, which was based on renovations, not demolition. The Board never engaged with the evidence led on the issue. The tenants knew the basis for the application before them and responded on the basis that the issue was renovation. Therefore, the decision of the Board must be set aside.
[7] The landlord asks that this Court make the findings of fact that the Board failed to make, given there is a full transcript. Pursuant to s. 210(4) of the Residential Tenancies Act, this Court, on appeal, can replace the decision of the Board.
[8] The evidence is clear that the landlord intends to carry out a renovation that requires that the premises be empty. The Board made the findings necessary under s. 73 of the Act, namely that the landlord acted in good faith and had obtained the necessary permits. The only issue is whether this Court should send the matter back to the Board to determine whether an eviction order should be refused pursuant to s. 83 of the Act.
[9] There is no evidence that the landlord is in serious breach of its responsibilities as a result of past behaviour, and therefore, s. 83(3) does not require refusal of an eviction order. Therefore, the remaining question is whether we are in a position to decide whether it would be unfair to the landlord to refuse the eviction order. We feel we are in a position to deal with this question.
[10] In our view, the landlord has made extensive efforts to accommodate the tenants. The landlord has made an offer of other units and funds in an effort to comply with ss. 52 and 54.
[11] I’m going to stop there. And the question is, an eviction order will be forthcoming, but the question is what terms would be fair and appropriate for all parties in the circumstances.
RECESS
[12] For oral reasons given, the appeal is allowed. The order of the Board is set aside. On consent, the tenancy shall be terminated on May 31, 2010 on the conditions that the landlord pay three months rent based on current rent to the tenants, and make reasonable efforts to help the tenants find a suitable unit. An eviction order shall be issued, not to be enforced before June 1, 2010.
[13] Given the difficult circumstances of the respondents, no costs are awarded.
Swinton J.
Hennessy J.
Maranger J.
Date of Reasons for Judgment: February 16, 2010
Date of Release: March 1, 2010
CITATION: Belcourt Manor Inc. v. Collard, 2010 ONSC 1160
DIVISIONAL COURT FILE NO.: DC-08-1469
DATE: 20100216
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, HENNESSY AND MARANGER JJ.
BETWEEN:
BELCOURT MANOR INC. Applicant (Appellant)
- and –
CLAIRE COLLARD AND BERNADETTE COLLARD Respondents (Respondents on Appeal)
REASONS FOR JUDGMENT
SWINTON J. (Orally)
Date of Reasons for Judgment: February 16, 2010
Date of Release: March 1, 2010