Kohen v. Warner, 2018 ONSC 3865

CONWAY J. (Orally)

1Natan Kohen and 8650173 Canada Ltd. (the “Landlord”) appeal the order of Member Jean-Paul Pilon of the Landlord and Tenant Board dated January 5, 2017. The order dismissed the Landlord’s application to evict Patrick Warner (the “Tenant”) pursuant to s. 48(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”) on the basis that the Landlord required possession of the rental unit for the purpose of residential occupation.

2The Tenant did not appear at the hearing before the Board but did attend in Court today. By order dated February 20, 2018, Thorburn J. appointed amicus curiae to assist this Court by delivering a factum and making oral submissions in response to the Landlord’s appeal.

Facts

3The Landlord owns a residential apartment building located at 882 Broadview Avenue, Toronto. The Tenant occupies a unit in the building.

4On November 11, 2016, the Landlord applied to the Board to terminate the tenancy, as he intended to have his son Sedat Kohen (“Sedat”) occupy the unit. At the hearing, Sedat’s evidence was that he was a full-time university student in London, Ontario, completing his first year of a four year program. He lived in a dormitory in London and returned to Toronto on the weekends, where he stayed with his family. Sedat testified that he had no personal space in his family home. He wanted to take immediate occupancy of the unit where he would reside on weekends during the school year and full-time during the summer, and intended to occupy the unit in this fashion for 5 years.

5During the hearing, the Member appeared to accept that the Landlord’s application was made in good faith. However, he dismissed the application on the basis that the intended occupation was occasional and did not constitute “residential occupation” pursuant to s. 48(1) of the Act.

Jurisdiction and Standard of Review

6An appeal from the Landlord and Tenant Board lies to the Divisional Court, but only on a question of law (s. 210(1) of the Act). The standard of review on the Board’s interpretation of its home statute, the Act, is reasonableness: First Ontario Realty v. Deng, 2011 CarswellOnt 244 (C.A.), paras. 17 and 21.

Analysis

7Section 48(1) of the Act, at the time of the hearing, provided that “A landlord may, by notice, terminate a tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation by…” the landlord or his spouse, child or parent, among others.

8Subsequent to the Board hearing, the Legislature amended s. 48(1) to require that the residential occupation be for a period of at least one year. However, this appeal is governed by the provisions of s. 48(1) that were in effect at the time of the hearing.

9The Landlord submits that the Member erred in law in determining that he was bound to dismiss the application by virtue of the decision in MacDonald v. Richard, [2008] O.J. No. 6076 (Div. Ct.), which he said was “binding precedent providing that occasional occupation is not what is intended” by s. 48(1) of the Act.

10The Landlord submits that the proposed occupation of the unit by the landlord’s daughter in MacDonald was a temporary 4 month occupation only and that this use was distinguishable from the case at bar, as Sedat would be living in the unit occasionally (on weekends during the school year and during the summer months) for 5 years. Amicus agrees with the Landlord that the Member was not bound by the MacDonald case, which involved temporary occupancy. Amicus submits that Sedat’s indefinite part-time occupancy may well fit within the Landlord’s s. 48(1) rights if that use is regular and structured.

11In our view, it is clear from the Member’s reasons, read as a whole, that the Member did not misstate the law in MacDonald nor did he decide the outcome of this case solely on the basis of MacDonald. The Member correctly stated s. 48(1) of the Act and the test in that section that applied. The Member further referred to the cases cited in MacDonald, and to other Board cases, in which occasional occupation of a unit by a landlord’s family was held not to be sufficient to displace a tenant. The Member then applied the principles from those cases to the facts before him to conclude that the proposed intermittent use of the unit by Sedat did not entitle the Landlord to terminate the existing tenancy pursuant to s. 48(1) of the Act.

12We view the issue raised in this appeal to be a question of mixed fact and law. To the extent that a question of law is raised, we are satisfied that the Member’s interpretation and application of the statutory condition in s. 48(1) was reasonable, given the remedial nature and purpose of the Act.

13The appeal is dismissed.

C. HORKINS J.

1I have endorsed the Appeal Book and Compendium as follows: “This Appeal is dismissed. No costs are ordered.”

___________________________ CONWAY J.

I agree