CITATION: 2212369 Ontario Inc. v. Vora, 2022 ONSC 5966
DIVISIONAL COURT FILE NO.: 22-00000021-0000
DATE: 20221024
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Sachs and R.D. Gordon JJ.
BETWEEN:
2212369 ONTARIO INC.
Appellant
– and –
PARAG VORA and HARSHALA VORA
Respondents
Matthew Diskin and Kristin AuCoin, for the Appellant
Bikram Singh Bal, for the Respondents
HEARD at Brampton by videoconference: October 20, 2022
Sachs J. (orally)
[1] The Appellant appeals an order of the Landlord and Tenant Board (the “Board”) terminating its tenancy based on the fact that the Landlords had sold the premises and the purchaser required the property for their own use.
[2] The board found that there was a bona fide purchaser who required the property for their own use. The contentious issue before the Board was whether the Landlords had paid the Tenant “compensation” as required under s. 49.1 of the Residential Tenancies Act (the “RTA”). That section requires that a landlord who is evicting a tenant because they have sold the premises and the purchaser requires the premises for their own use to pay the tenant one month rent in compensation.
[3] It is undisputed that the Landlords provided the Tenant with a cheque for one month’s rent, which was deposited into the Tenant’s bank account. The Tenants submit that this payment does not constitute “compensation” within the meaning of the RTA because (1) the payment was made before the Landlords served the Tenant with a Notice to Terminate under the Act and (2) the payment was made for the purpose of returning to the Tenant its October rent payment.
[4] In its decision the Board found that the payment that the Landlords made did constitute compensation (and not a return of the October rent as the Tenant asserted). It also found that the fact that the Tenant refused to accept that compensation did not mean that the Landlords had not satisfied their obligation to pay compensation under the RTA.
[5] This court’s jurisdiction to hear appeals from the Board is confined to errors of law. The issue of what the disputed payment was for and whether the Tenant’s actions constituted a refusal to accept the compensation, are issues of fact that the Board was required to and did determine. In this regard we note that s. 202 of the RTA states that the Board “shall ascertain the real substance of transactions and activities relating to a residential complex”. This is what the Board did and its factual findings in this regard are not reviewable by this court.
[6] The only question of law before us is whether a payment that is made before a Notice to Terminate is served can constitute compensation within the meaning of the Act.
[7] The relevant portion of Section 49.1 of the Act provides as follows:
49.1 (1) A landlord shall compensate a tenant in an amount equal to one month’s rent or offer the tenant another rental unit acceptable to the tenant if,
(a) the landlord gives the tenant a notice of termination of the tenancy on behalf of a purchaser under subsection 49 (1) or (2);
[8] Section 49.1 makes it mandatory for a Landlord to compensate a tenant if it gives the tenant a notice to terminate under s. 49. It does not specify that the compensation can only be paid after the notice has been given.
[9] Section 55.1 of the Act requires that the compensation be paid prior to the termination date specified in the Notice to Terminate. In this case that condition was satisfied.
[10] There is no provision in the Act that states that the compensation that the landlord is required to pay under s. 49.1 must be paid after the Notice to Terminate is served. Nor were we given any persuasive principled reason why the Act should be interpreted in this manner. In fact, to do so might work an injustice. For example, if a landlord advises a tenant that they will be providing them with a Notice to Terminate under s. 49 and the parties agree that the landlord will pay the tenant their entitlement to compensation prior to the serving of the notice, the Appellant’s submission would allow to the tenant to accept the payment before the notice is served and then demand that the landlord make another payment after the notice is served.
[11] During oral argument the Appellant raised two issues that were not raised before the Board or in its appeal factum. The first was an assertion that the payment that the Landlords did make was short by $42.00. The second was that there was no evidence before the Board that there was an extant Agreement of Purchase and Sale for the premisses in question. We would not give effect to these arguments as they were raised for the first time on appeal during the oral argument.
[12] For these reasons the appeal is dismissed and the stay of the Eviction Order is lifted as of October 31, 2022. The Landlords requested $10,000 in costs and the Tenant agreed that this amount was appropriate. In view of this agreement we order that the Tenant pay the Landlords $10,000 in costs.
Sachs J.
I agree _______________________________
Aston J.
I agree _______________________________
R. D. Gordon J.
Released: October 24, 2022
CITATION: 2212369 Ontario Inc. v. Vora, 2022 ONSC 5966
DIVISIONAL COURT FILE NO.: 22-00000021-0000
DATE: 20221024
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Sachs and R.D. Gordon JJ.
BETWEEN:
2212369 ONTARIO INC.
Appellant
– and –
PARAG VORA and HARSHALA VORA
Respondents
REASONS FOR JUDGMENT
Sachs J. (Orally)
Released: October 24, 2022