- DATE: 20020710 DOCKET:C37563
COURT OF APPEAL FOR ONTARIO
RE:
879869 ONTARIO LIMITED (Applicant/Appellant) - and - CHRISTOPHER MCDONALD (Respondent)
BEFORE:
FINLAYSON, CARTHY AND LASKIN JJ.A.
COUNSEL:
Naomi S. D. Solomon
for the appellant
Louis A. Frapporti
for the respondent
HEARD:
June 27, 2002
On appeal from the judgment of Justice Lee K. Ferrier dated December 12, 2001.
E N D O R S E M E N T
Released Orally: June 27, 2002
[1] The appellant invoked the jurisdiction of the Ontario Rental Housing Tribunal contending that the unit in question was a residential unit and that the respondent had breached s. 62(1) and s. 64(1) of the Tenants Protection Act.
[2] The Tribunal concluded that the appellant had failed to show either that the respondent had substantially interfered with the landlord’s reasonable enjoyment of the residential complex or that the respondent had carried on an illegal act or business in the complex.
[3] The appellant did not appeal the Tribunal’s decision. Instead it sought a declaration in the Superior Court that the unit is a de facto commercial tenancy. On a motion by the respondent, Ferrier J. dismissed the application on the basis of issue estoppel.
[4] In this court the appellant submits that the question whether the unit is a de facto commercial tenancy was not decided by the Tribunal. Indeed, the appellant argues that the tribunal did not even consider whether it had jurisdiction to deal with the appellant’s application before it.
[5] There are two answers to the appellant’s submission. First, the Tribunal’s findings were premised on the unit in question being a residential unit. Thus, although the Tribunal did not expressly say that it had jurisdiction, its jurisdiction is implicit in its decision. Therefore, the motions judge was correct to conclude that the question whether the unit was residential or commercial had already been decided by the Tribunal.
[6] Second, the appellant itself sought to rely on and never disputed the Tribunal’s jurisdiction. Having been unsuccessful we do not think it is open to the appellant to resile from its position before the Tribunal and take an entirely different position in court in the hope of getting a different result.
[7] Finally, we find no special circumstances that would justify the continuation of the appellant’s application. No injustice is caused by the dismissal of this application.
[8] Accordingly, the appeal is dismissed with costs, fixed in the amount requested by the respondent, at $4,205.79 inclusive of GST and disbursements.
“G.D. Finlayson J.A.”
“J.J. Carthy J.A.”
“J.I. Laskin J.A.”