CITATION: Martinyiuk v. Otavnik, 2010 ONSC 1323
DIVISIONAL COURT FILE NO.: 274/08
DATE: 20100301
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MCCOMBS, DAMBROT AND SACHS JJ.
BETWEEN:
RICHARD MARTINYIUK
Landlord
(Appellant)
– and –
CHARLENE KRUPOP and JOSEPH OTAVNIK
Tenants/Occupant
(Respondents)
Robert G. Doumani, for the Landlord (Appellant)
Joseph Otavnik, In Person
HEARD at Toronto: March 1, 2010
MCCOMBS J. (ORALLY)
[1] The appellant raises three issues in this appeal:
(i) Did the Board err in applying a reverse onus on the landlord to investigate the suitability of a proposed occupant?
(ii) Did the Board err in finding that Mr. Otavnik was a tenant within the meaning of the Act?
(iii) Did the Board err in finding that there was a deemed assignment?
[2] The first issue, involving the reverse onus question, is not an issue that needs to be dealt with if the appeal is dismissed with respect to the other two issues. Pursuant to s.210 of the Residential Tenancies Act, a party may appeal an order of the Landlord and Tenant Board to the Divisional Court but only on a question of law. The question of whether Mr. Otavnik was a tenant within the meaning of the Act, is a question of mixed fact and law. Contrary to the assertion of the appellant, there was evidence before the Board from which the inference could be drawn that Mr. Otavnik was a tenant.
[3] Turning next to the issue of whether or not there was a deemed assignment: regardless of whether or not Mr. Otavnik was himself a tenant, it was open to the Board to conclude from the evidence that the tenancy had been assigned to Meaghan Wilson who was the niece of the primary tenant, Charlene Krupop. The Board did not err in law in reaching that conclusion.
[4] Section 104(4) of the Residential Tenancies Act provides that where a person occupies a rental unit as a result of the assignment of the unit without the consent of the landlord, and the landlord does not apply to the Board for an order evicting that person within sixty days of the landlord discovering the unauthorized occupancy, the occupation is deemed to be an assignment with the consent of the landlord.
[5] The Board reached the conclusion that the landlord failed to apply for eviction within the sixty day period. This is a finding of fact that cannot be challenged on this appeal.
[6] The appeal is therefore dismissed.
COSTS
[7] Costs fixed at $750.00 payable to the respondent forthwith.
MCCOMBS J.
DAMBROT J.
SACHS J.
Date of Reasons for Judgment: March 1, 2010
Date of Release: March 4, 2010
CITATION: Martinyiuk v. Otavnik, 2010 ONSC 1323
DIVISIONAL COURT FILE NO.: 274/08
DATE: 20100301
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MCCOMBS, DAMBROT AND SACHS JJ.
BETWEEN:
RICHARD MARTINYIUK
Landlord
(Appellant)
– and –
CHARLENE KRUPOP and JOSEPH OTAVNIK
Tenants/Occupant
(Respondents)
REASONS FOR JUDGMENT
MCCOMBS J.
Date of Reasons for Judgment: March 1, 2010
Date of Release: March 4, 2010