CITATION: Akelius Canada Ltd. v. Barrett, 2018 ONSC 7144

DIVISIONAL COURT FILE NO.: 068/18 LANDLORD AND TENANT BOARD

FILE NO.: TSL-89683-17

DATE: 20181127

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

PLATANA, SACHS, and C. HORKINS JJ.

BETWEEN:

AKELIUS CANADA LTD.

Landlord/Respondent

– and –

KEVIN BARRETT

Tenant/Appellant

Nicholas Sampson, for the Landlord/Respondent

Caryma Sa’d and Robert McNeillie, for the Tenant/Appellant

HEARD at Toronto: November 27, 2018

C. HORKINS, J. (Orally)

1The Appellant, Kevin Barrett, appeals an order of the Landlord and Tenant Board (the “Board”) issued on December 13, 2017, and the review order of the Board issued on January 23, 2018.

2The Board terminated the Appellant's tenancy pursuant to s. 93 of the Residential Tenancies Act, 2006 (the "Act") and this order was confirmed on review.

3The Appellant seeks an Order reinstating his tenancy or, in the alternative, remitting the matter back to be considered by a different panel.

Background

4In July 2004, the Appellant entered into a lease agreement for the lease of a unit at 122 Dowling Avenue (the "rental unit"). Camwood Properties Ltd. was the owner of the apartment building (the "Predecessor Landlord"). During his tenancy, the Appellant switched units due to renovations at the rental premises and agreed to pay a rental rate of $800.00 per month. The Predecessor Landlord held a final month rent deposit for the Appellant in the amount of $800.00.

5In March 2008, the Predecessor Landlord and the Appellant discussed the possibility of the Appellant assuming the superintendent duties for the rental premises. The parties entered into an employment relationship in an agreement dated March 24, 2008 (the "Contract"). The Contract set out the Appellant's duties and provided that in exchange for his work the Appellant would be provided free rent.

6The Contract contained the following two key provisions:

(1) It is understood, that in the event of the sale of the building, or if your services as superintendent are terminated, The Company will abide by the applicable rules governing superintendents as determined from time to time, by the Landlord and Tenant Act [referred to as "Provision A"].

(2) The current rental rate of your apartment is $800.00. Yearly rental increases will continue to apply. Should you decide to leave the position of Superintendent and wish to stay as a tenant of [the Predecessor Landlord], rent will commence at $800.00 plus any yearly rental increases which have been accumulated [referred to as "Provision B"].

7The Appellant states that he accepted the position on the basis of an oral agreement with the Predecessor Landlord that he could remain at the rental unit if or when he stopped working as superintendent.

8During the Appellant's employment, the Predecessor Landlord made several attempts to negotiate new terms for the Contract. The Appellant did not agree to any of the proposed changes. As a result, the Contract remained in place.

9In 2017, Akelius Canada Ltd., the Respondent on this appeal, bought the rental premises from the Predecessor Landlord.

10On October 6, 2017, the Predecessor Landlord terminated the Appellant's employment as superintendent by written notice. The notice outlined that the termination was effective as of October 17, 2017 and required the Appellant to provide vacant possession of the rental unit by that date. The Predecessor Landlord sent a second notice on October 16, 2017 detailing the same information. The Appellant refused to comply with the written notices and remained in the unit.

11On October 18, 2017, the Respondent officially became the owner of the rental premises. The Respondent immediately filed an application with the Board seeking an order evicting the Appellant from the rental unit as his employment as superintendent had ended pursuant to the Contact and s. 93 of the Act.

The Board Decision

12The Board allowed the application and made an order terminating the tenancy and ordering eviction pursuant to s. 93 of the Act. Section 93 of the Act sets out summary termination procedures for live-in superintendents as follows:

(1) If a landlord has entered into a tenancy agreement with respect to a superintendent's premises, unless otherwise agreed, the tenancy terminates on the day on which the employment of the tenant is terminated.

(2) A tenant shall vacate a superintendent's premises within one week after his or her tenancy is terminated.

13The Appellant was occupying his unit rent free in exchange for his employment as superintendent. The Board found that his rental unit was the superintendent’s premises under s. 93.

14The Appellant argued that there was an agreement to continue his tenancy if his employment as superintendent was terminated. The Board rejected this argument.

15The Board considered Provisions A and B of the Contract. Since the Appellant's employment was terminated due to the sale of the building, and not by his resignation, the Board found that Provision A of the Contract applied.

16The Board found that there was no agreement otherwise between the Appellant and the Predecessor Landlord that would allow the tenancy to continue after the Appellant's employment as superintendent was terminated by the Landlord. As a result, the tenancy was terminated on October 17, 2017 pursuant to s. 93 of the Act.

17The Board applied s. 83(1)(b) of the Act and postponed the Appellant's eviction until January 31, 2018. The Board also issued orders that required the Appellant to pay the Respondent's per diem compensation for his use of the rental unit following his termination and before his eviction date.

18On January 23, 2018, the Board’s order was confirmed.

19In dismissing the review request, the Board was not satisfied, on the basis of the Appellant's submissions, that there was a serious error in the order or that a serious error occurred in the proceedings. The Appellant's arguments were considered and rejected.

Right of Appeal / Standard of review

20Section 210(1) of the Act provides that the appellant may appeal an order of the Board “but only on a question of law”. The standard of review is reasonableness.

Analysis

21The grounds of appeal as articulated in Court are as follows::

(1) The Board did not consider the threshold question under s. 93: Did the Landlord enter into a tenancy agreement with respect to a superintendent’s premises?

(2) The Board erred in its interpretation of the words “otherwise agreed” in s. 93. Specifically, was there another agreement?

(3) The Board did not consider s. 202 of the Act that requires it to “ascertain the real substance of the transactions and activities”.

Ground No. 1 – Precondition for Application of Section 93(1)

22For s. 93(1) to apply, the Landlord must have entered into a tenancy agreement with respect to a superintendent’s premises. It is clear from reading the Board’s decision as a whole that the Board found that the Contract the parties entered into on March 24, 2008, was a new tenancy agreement.

23The Review decision also dealt with this issue and found the following at para.14 of its decision:

There is evidence on the record that allowed the member to reasonably determine that a new tenancy agreement had commenced when the tenant began his employment as a superintendent.

24The issue of whether or not the agreement of March 24, 2008 was a new tenancy agreement was an issue of mixed fact and law and is not reviewable by this Court that can only address pure questions of law.

Ground No. 2 – Alleged Error in Board’s interpretation of “unless otherwise agreed”

25At para. 9 of the Board’s decision, the Board states:

As the Tenant’s employment as superintendent was terminated by the previous owner (and not by the Tenant’s resignation) provision A of the contract applies. As it is provision A that applies, there is no agreement that the tenancy continue after the Tenant’s employment as superintendent is over. Because there is no agreement otherwise, the tenancy terminated on October 17, 2017 as per s. 93 of the Act.

26On this question, the Board reasoned that the agreement between the parties was clear: the appellant’s tenancy would continue only if he decided to leave the position of superintendent and stay on as a tenant. Therefore, there was no agreement that in a situation where the landlord terminated the appellant’s employment, his tenancy could continue.

27These findings involved interpreting the Contract between the parties. As the Supreme Court of Canada made clear in Sattva Capital Corp. v. Creston Moly Corp. 2014, SCC 53 at para. 49-50, questions of contractual interpretation are questions of mixed fact and law. As such, they are not open to review by this Court.

Ground No. 3 – Failure to Consider Section 202 of the Act

28Section 202 (1) of the Act requires the Board when making findings on an application to do as follows:

202 (1) In making findings on an application the Board shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants and in doing so,

(a) may disregard the outward form of a transaction or the separate corporate existence of participants; and

(b) may have regard to the pattern of activities relating to the residential complex or the rental unit.

29While the Board did not quote s. 202, it implicitly found that the real substance of the transaction between the parties was reflected in the Contract that they entered into on March 24, 2008: a contract that was a tenancy agreement with respect to superintendent’s premises.

30In doing so, the Board considered all of the evidence before it including any evidence that may have spoken to the good faith of the parties.

31Essentially, the Appellant’s argument is that the Board should have made a different finding on the facts. Again, this Court has no jurisdiction to review the Board’s findings of fact.

32For these reasons, the appeal is dismissed.

Sachs J.

33I have endorsed the Appellant’s Appeal Book as follows: “This appeal is dismissed for reasons given orally by Horkins J. The Respondent as the successful party is entitled to its costs of this appeal, on a partial indemnity basis, which we would fix at $5,000, all inclusive. This amount reflects the fact that this was a straight forward appeal both factually and legally. As a

result of this dismissal of this appeal, a stay imposed with respect to the Appellant’s eviction is lifted unless this Court directs otherwise. In view of the Appellant’s circumstances and the season, we are directing that this eviction be stayed until February 28, 2019. The Respondent shall have six months from that date to file the eviction order with the Sherriff for enforcement.”

C. HORKINS J.

I agree _______________________________

PLATANA J.

I agree _______________________________