The Court:

Overview

[1] The Appellant Tenant, Mr. Fard appeals two orders of the Landlord and Tenant Board. The first order terminated their tenancy at the Respondent landlord’s rental property. The Board’s subsequent order denied the Tenants’ request to review the initial order.

[2] The Landlord brought a motion to quash the Tenants’ appeal, which Sutherland J. dismissed by endorsement dated July 21, 2022. The Landlord then moved before a panel to set aside that order. That motion was scheduled to be heard together with this appeal.

[3] The parties entered into an oral agreement for the Tenants to lease the rental property, which was a home owned by the Landlord, starting on August 1, 2019. Prior to the commencement of the lease, the Landlord lived in the home with his parents. He left his personal belongings in the home when the Tenants moved in.

[4] There was a dispute between the parties as to the length of the lease. The Landlord testified before the Board that he only ever agreed to a one-year lease running from August 1, 2019 to July 31, 2020. He stated that he sought to lease the property while he was in China getting married but intended to return to live in the home with his wife. Mr. Fard testified that the parties agreed to a three-year lease and that he thought they would sign a written lease when the Landlord returned from China.

[5] On November 30, 2020, the Landlord served the Tenants with a notice of termination of the tenancy pursuant to s. 48 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “Act”). Section 48 permits a landlord to terminate a tenancy where the landlord in good faith requires possession of the rental unit for at least one year for their own occupation.

[6] In its order dated February 28, 2022, the Board found that the Landlord in good faith required the rental unit for the purpose of residential occupation for himself. The question of when the Landlord could move into the unit depended on whether the parties had entered into a three-year lease. The Board noted that both parties had relied on discussions each had with the Landlord’s agent, though neither called the agent as a witness. The Board also noted that the Landlord had left all his personal belongings in the unit. This suggested there was no long-term rental agreement. The Board concluded there was insufficient evidence to establish a three-year lease. Under s. 83 of the Act, which allows the Board to refuse or postpone an eviction, the Board found that it would not be unfair to postpone the eviction until April 30, 2022 to allow the Tenants a two-month period to find new accommodation.

[7] In its order dated March 29, 2022, the Board denied the Tenants’ request for review. In their request, the Tenants relied on a June 30, 2020 order in which the Board found that the Landlord had substantially interfered with the tenants’ reasonable enjoyment of the property by not clearing out his personal belongings. In the review order, the Board stated the June 2020 application had no relevance to the Board’s findings concerning whether there was a three-year lease. It found that the Tenants were challenging findings of fact about the three-year lease and that they had failed to establish a serious error with the order.

[8] On appeal, the Mr. Fard submits that (1) the Board erred in its application of sections 48, 83 and 202 of the Act; (2) the Board erred in misapprehending the evidence, disregarding relevant evidence and/or making findings of fact for which there was no evidence; (3) the Board erred in failing to provide sufficient reasons; and (4) the Board denied the tenants’ right to procedural fairness by terminating the tenancy on the basis of hearsay evidence.

[9] For the reasons that follow, the appeal is dismissed.

Analysis

[10] Section 210 of the Act limits appeals of the Board’s orders to questions of law. The standard of review is correctness on questions of law. For procedural fairness, the question is whether procedural fairness has been afforded.

[11] There was evidence to support the Board’s factual findings that (a) the Landlord in good faith required possession of the rental unit for his own occupation and (b) the Tenants failed to prove there was any agreement for a 3-year lease.

[12] This latter finding cited the corroborative evidence that the Landlord left personal belongings, including furniture and appliances at the premises as a reason to prefer the Landlord’s evidence. It is consistent with the Landlord’s evidence that he was only temporarily absent from Canada, to marry in China, with the intention to return to Canada.

[13] It was open to the Board to reach that finding notwithstanding the hearsay testimony about what the Landlord’s agent allegedly told the Tenant about a 3-year lease. As the Board noted, both parties relied on discussions with the Landlord’s agent. This case is unlike Manikam v. Toronto Community Housing Corporation, 2019 ONSC 2083, where the eviction of the tenant hinged entirely on hearsay evidence. Here, the Board relied on other evidence in support of the eviction, including the Landlord’s good faith intention to occupy the property, the Landlord’s evidence that he instructed his agent to enter into a one-year lease, and the evidence that the Landlord left all his belongings at the property. There was no breach of procedural fairness in the Board’s weighing of the evidence to conclude the Tenant had not established a three-year lease.

[14] The earlier applications to the Board by the Tenants had already been resolved before the hearing relating the Landlord’s application to terminate the tenancy and are not relevant to the single factual issue the Board needed to decide – whether there was an unexpired term to the lease.

[15] The errors the Tenant alleges are in substance challenges to the Board’s findings of fact or to its application of correct legal principles to the evidence, which is a question of mixed fact and law. Those findings were adequately explained in the Board’s reasons for the initial order and the review order. Findings of that nature are not reviewable by this court on appeal.

Disposition

[16] The appeal is dismissed.

[17] The Landlord’s motion to have Sutherland J.’s order set aside is arguably moot, but because his order includes an order for costs, we have reviewed it. Though successful on the appeal, the Landlord has failed to demonstrate that the appeal was “manifestly devoid of merit” or “an abuse of process”. We decline to set that order aside.

[18] The Landlord is entitled to the costs of the appeal, which we would fix in the amount of $7,000. Mr. Fard was the successful party on the motion. We would award costs of the motion in the amount of $3,000. Therefore, the Mr. Fard shall pay the net costs of $4,000 all-inclusive to the Landlord. These costs are in addition to the costs awarded to Mr. Fard by Sutherland J.

___________________________ Aston J.

___________________________ Lococo J.

O’Brien J

Released: April 3, 2023

CITATION: Fard et al v. Wu, 2023 ONSC 1965

DIVISIONAL COURT FILE NO.: DC-22-1305-00

DATE: 20230403

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Aston, Lococo, and O’Brien JJ

BETWEEN:

AMIR HOSSEIN MOTAGHIAN FARD and SHIRIN GANKBAKHSH

Appellant

– and –

XUEYUN WU

REASONS FOR JUDGMENT

THE COURT

Released: April 3, 2023

Fard et al v. Wu, 2023 ONSC 1965

Case Summary

The Court:

Overview

Analysis

Disposition

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Legislation 1