Court File and Parties

CITATION: CIBC Mortgages Inc. v. Monaghan, 2010 ONSC 5703

DIVISIONAL COURT FILE NO.: 433/09

DATE: 20101018

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: CIBC MORTGAGES INC. c/o VERANOVA PROPERTIES Landlord (Respondent in Appeal)

AND:

MICHAEL MONAGHAN Tenant (Appellant in Appeal)

BEFORE: KRUZICK, SWINTON and HARVISON-YOUNG JJ.

COUNSEL: Ron Aisenberg and Laura White, for the Landlord/Respondent in Appeal Michael Monaghan, self-represented, Tenant/Appellant

HEARD at Toronto: OCTOBER 14, 2010

Endorsement

BY THE COURT:

[1] The respondent CIBC Mortgages Inc. is a mortgagee in possession of the condominium unit rented by the appellant Michael Monaghan (“the Tenant”). It brought an application to terminate the tenancy for non-payment of rent. The Landlord and Tenant Board (“the Board”) granted the application on April 20, 2009, at a hearing at which the Tenant was not present.

[2] In the review decision dated August 20, 2009, the Board found that Mr. Monaghan had, contrary to his position, received notice of the April 20, 2009 hearing. It rejected his argument that the Board erred in finding that there had been no prepayment of rent.

[3] An appeal lies to this Court only on a question of law (Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 210(1)). Most of the issues raised by the Tenant in his factum challenge the Board’s findings of fact. As there was evidence to support the Board’s findings on the matters of notice and the payment of rent, there is no basis for interfering with that decision as the record discloses no error of law.

[4] The Tenant also argues that the Board did not have jurisdiction to make the orders it made because the tenancy is not a residential tenancy subject to the Act. He relies on s. 5(j) of the Act, which exempts

(j) premises occupied for business or agricultural purposes with living accommodation attached if the occupancy for both purposes is under a single lease and the same person occupies the premises and the living accommodation.

[5] This argument does not appear to have been raised before the Board, nor is it a ground of appeal set out in the Notice of Appeal. At the hearing before the Board on review, no evidence was led to show that this exemption applied to the Tenant’s rental unit, although he was given an opportunity to lead evidence and invited to lead reply evidence. Therefore, there is no error of law requiring this Court to intervene on this ground.

[6] Accordingly, the appeal is dismissed. Costs are payable by the appellant to the respondent CIBC in the amount of $5,000.00.

KRUZICK J.

SWINTON J.

HARVISON YOUNG J.

Date: October 18, 2010