Court File and Parties
DIVISIONAL COURT FILE NO.: 183/12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, SWINTON AND TOSCANO ROCCAMO JJ.
BETWEEN:
YAN WEN YU
Landlord
(Respondent in Appeal)
– and –
BO XIAO and KAT PAN YAU
Occupants
(Appellants in Appeal)
Douglas Levitt, for the Landlord (Respondent in Appeal)
Jizi Chen, for the Occupants (Appellants in Appeal)
HEARD at Toronto: May 28, 2014
Oral Reasons for Judgment
dambrot j. (ORALLY)
1The appellants appeal from an order of the Landlord and Tenant Board dated March 22, 2012, granting Mr. Yu’s application to evict an unnamed, unauthorized occupant or any other persons from 24 Valley Centre Drive, Toronto.
2Making every allowance for the informality of landlord and tenant proceedings, the hearing in this case can only be viewed as unsatisfactory. When advised by the appellants that they were not tenants, but rather resided on the premises on the basis of an agreement with the Landlord, the Board effectively refused to consider their position and told them to pursue their remedies in another court. As a result, he never afforded them an opportunity to present evidence and never adjudicated on their position.
3Upon our review of the transcript of the proceeding, it is plain that there was no evidence that the appellants were either tenants or unauthorized occupants within the meaning of s. 100 of the Residential Tenancies Act. As a result, the Board had no authority to order their eviction. Despite this, the Board made an order for the eviction of the unauthorized occupant “or any other person”. As a result, the effect of the order is in fact to evict the appellants and the transcript shows that the Board Member meant to do so. However, there is no authority in the Act to evict anyone other than tenants or unauthorized occupants. As a result, the Board denied the appellants natural justice in failing to consider their position, erred in law in evicting the appellants without any evidentiary basis to do so, and made an order that he was unauthorized to make.
4Notwithstanding the valiant efforts of Mr. Levitt, the appeal is allowed and a new hearing is ordered. As a result, we need not adjudicate on any other motions before us.
COSTS
5The appeal is allowed for oral reasons, and a new hearing is ordered. Costs to the appellants fixed at $12,500 all in, with 60 days to pay.
DAMBROT J.
SWINTON J.
TOSCANO ROCCAMO J.
Date of Reasons for Judgment: May 28, 2014
Date of Release: June 25, 2014
CITATION: Yu v. Xiao, 2014 ONSC 3257
DIVISIONAL COURT FILE NO.: 183/12
DATE: 20140528
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, SWINTON AND TOSCANO ROCCAMO JJ.
BETWEEN:
YAN WEN YU
Landlord
(Respondent in Appeal)
– and –
BO XIAO and KAT PAN YAU
Occupants
(Appellants in Appeal)
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: May 28, 2014
Date of Release: June 25, 2014