Court File and Parties

Citation: Abraham J. Green (225 Davisville Ave Ltd.) v. Kumar, 2018 ONSC 5294 Divisional Court File No.: 577/17 Landlord and Tenant Board File Nos.: TSL-85517-17; TSL-85517-17-RV Date: 2018-09-11

Superior Court of Justice – Ontario Divisional Court

Re: Abraham J. Green (225 Davisville Ave Ltd.), Applicant (Respondent on appeal) And: Gerald Marois, Respondent And: Kapil Kumar, Respondent (Appellant)

Before: Marrocco A.C.J.S.C.J., Swinton and Thorburn JJ.

Counsel: Joshua Concessao, for the Appellant Timothy Duggan, for the Respondent on Appeal

Heard at Toronto: September 10, 2018

Endorsement

[1] The appellant Kapil Kumar appeals from two orders of the Landlord and Tenant Board (the “Board”): an order made on consent dated July 21, 2017 terminating his occupancy of a rental unit on August 15, 2017 and a review order dated September 19, 2017 dismissing his request for reconsideration.

[2] The Board refused to grant the request for review of the consent order on the basis that the appellant had not proved that there had been a mutual mistake, fraud or other grounds to invalidate a contract and therefore, there was no basis to set aside the consent.

[3] The respondent argues that the appellant requires leave to appeal the consent order in accordance with s. 133(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[4] The main thrust of this appeal is with respect to the reconsideration decision and leave is not required to bring such an appeal.

[5] The appellant argues that the Board erred in law, because it failed to give effect to s. 3(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”), which states, “This Act, except Part V.1, applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary.” According to the appellant, at the time he agreed to the consent order, he was unaware that the Act, s. 2(1) and O. Reg. 516/06, s. 3(1) provide that the surviving spouse of a tenant is entitled to remain as a tenant in the rental unit that is his or her principal residence after the death of the named tenant. The appellant had not disclosed that he was in a spousal relationship with the deceased tenant, Gerald Marois, at the time he entered into the consent. He now submits that the consent order is invalid because he cannot waive his rights to continue the tenancy under the Act. We note that this argument was not made to the Board at the reconsideration hearing.

[6] The Board made no determination whether the appellant was in a spousal relationship with Mr. Marois. However, assuming that the appellant was in a spousal relationship at the time of Mr. Marois’ death and had acquired the rights of a tenant in the unit, he was nevertheless entitled to consent to the termination of that tenancy. Subsection 37(3) of the Act permits a landlord and tenant to make an agreement to terminate a tenancy.

[7] This is not a situation where the parties were seeking to contract out of the terms of the Act, nor is it a situation where the appellant was waiving legal rights. The consent order was an agreement made by the parties to resolve the respondent landlord’s application for an eviction order. The Board reasonably concluded that the consent order was valid, as there is no evidence of mutual mistake, misrepresentation, fraud, duress, or other grounds to set aside the order. The appellant has not shown that the Board made any error of law.

[8] Accordingly, the appeal is dismissed. Given the appellant’s financial circumstances, there will be no order as to costs.

Marrocco A.C.J.S.C.J.

Swinton J.

Thorburn J.

Date: September 11, 2018