Minto v. Houtzager, 2010 ONSC 5129

CITATION: Minto v. Houtzager, 2010 ONSC 5129

COURT FILE NO.: 85/10

DATE: 2010/09/17

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: Minto Furnished Suites a division of Minto Apartments Limited v. William JJ Houtzager and Shakti Roy

BEFORE: MOLLOY, HARVISON-YOUNG and HERMAN JJ.

COUNSEL: Martin P. Zarnett, for the Applicant/Appellant Mark Michaels, for the Intervenor Landlord and Tenant Board No one appearing for the Respondents/Tenants

HEARD AT TORONTO: September 17, 2010

ENDORSEMENT

BY THE COURT:

[1] The appellant/landlord, Minto Furnished Suites, appeals the orders of Board Member Horton of the Landlord and Tenant Board dated February 2, 2010 and February 8, 2010. In particular, Minto submits that the Board Member erred in law by determining that the Board did not have jurisdiction to proceed with the landlord’s application for termination of the respondents’ tenancy and eviction.

[2] Subsequent to the issuance of the Board’s decision, the appellant landlord sought and obtained an order of Swinton J. on a motion in this appeal. That order, dated March 1, 2010, provided that the respondent tenants were required to pay arrears of rent and ongoing rent to the appellant failing which the appellant was at liberty to obtain a Writ of Possession directing the Sheriff to place the landlord in possession of the rental unit.

[3] The respondent tenants did not comply with the order and the appellant obtained a Writ of Possession. The respondent tenants were evicted from the rental unit by the Sheriff on or about April 15, 2010.

[4] The intervenor, the Landlord and Tenant Board, brought a preliminary motion that this Court should not hear the landlord’s appeal on the basis that the issue between the parties is moot.

[5] Where mootness is raised, the court is required to undertake a two-step analysis. The first step involves a determination of whether the dispute between the parties has disappeared and the issues have therefore become academic. If the answer is in the affirmative, the court will then determine if it should exercise its discretion to hear the case (Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342 at para. 16).

[6] The appellant landlord submits that there is still a live issue between the parties because, notwithstanding the execution of the writ of possession, the tenancy has not been terminated. The landlord sought both eviction and termination of the tenancy from the Board and only eviction has been effected as a result of the order of Swinton J.

[7] In our opinion, the execution of the Writ of Possession effectively terminated the tenancy. In the result, the dispute between the parties has disappeared.

[8] It is also our opinion that there are no circumstances that would warrant the exercise of our discretion to hear the case. Factors that courts have considered in determining whether they should exercise their discretion include: a strong public interest in the resolution of the issues (Tamil Co-operative Homes Inc. v. Arulappah (2000 5726 (ON CA), [2000] O.J. No. 3372 (C.A.) at para. 27); the existence of an ongoing relationship between the parties (Nova Scotia Department of Transportation and Public Works) v. Canadian Union of Public Employees, Local 1867, [2005] N.S.J. No. 411 (C.A.); Graff v. Alberta (Energy and Utilities Board), [2007] A.J. No. 1245 (C.A.)); and whether the issue before the court is evasive of review (Borowski v. Canada at para. 36). In our opinion, none of these factors apply here.

[9] Furthermore, we note that the tenants did not appear. Although the Board took a position contrary to that of the appellant landlord, the Board does not stand in an adversarial relationship and there is no lis between the Board and the landlord.

[10] The appeal is therefore dismissed as moot. There will be no order as to costs.

MOLLOY J.

HERMAN J.

HARVISON YOUNG J.

DATE: September 17, 2010