Canada Trustco Mortgage Co. v. Park [Indexed as: Canada Trustco Mortgage Co. v. Park]
72 O.R. (3d) 480
[2004] O.J. No. 3215
Docket No. C41227
Ontario Court of Appeal,
Abella, Moldaver and Simmons JJ.A.
July 9, 2004
Landlord and tenant -- Residential tenancies -- Termination -- Mortgagee in possession -- Tenant under lease with fixed term -- Mortgagee in possession may not terminate fixed-term tenancy other than as at end of fixed term -- Mortgages Act, R.S.O. 1990, c. M.40, ss. 46, 47, 48, 53 -- Tenant Protection Act, 1997, S.O. 1997, c. 24, ss. 1, 2, 47, 51.
Mortgages -- Mortgagee in possession of residential premises -- Possession -- Tenant under lease with fixed term -- Mortgagee in possession may not terminate fixed-term tenancy other than as at end of fixed term -- Mortgages Act, R.S.O. 1990, c. M.40, ss. 46, 47, 48, 53 -- Tenant Protection Act, 1997, S.O. 1997, c. 24, ss. 1, 2, 47, 51.
NOTE: The catchlines above relate to a decision of the Divisional Court dated March 26, 2003 49385 (ON SCDC), 2003, 63 O.R. (3d) 789. An appeal from the judgment was dismissed by the Court of Appeal for Ontario (Abella, Moldaver and Simmons JJ.A.) on July 9, 2004. The court's endorsement was as follows:
Richard Horodyski and Amanda Jackson, for appellant. Linda R. Rothstein and Robert A. Centa, Amicus Curiae.
[1] BY THE COURT: -- The appellant had argued that, pursuant to s. 53(4) of the Mortgages Act, R.S.O. 1990, c. M.40, it was entitled, as a mortgagee in possession, to terminate a fixed- term lease of a single-family home on 60 days' notice. Section 51(2) of the Tenant Protection Act, 1997, S.O. 1997, c. 24 states that "[t]he date for termination specified in the notice shall be at least 60 days after the notice is given and shall be the day a period of the tenancy ends or, where the tenancy is for a fixed term, the end of the term."
[2] In our view, the majority of the Divisional Court (reported at (2003), 2003 49385 (ON SCDC), 63 O.R. (3d) 789) and the Ontario Rental Housing Tribunal adjudicator, Mr. Edward Lee, were correct in concluding that, to the extent that there is a conflict between s. 53(4) of the Mortgages Act and s. 51(2) of the Tenant Protection Act, the primacy clause, s. 2(4) of the Tenant Protection Act, governs and clearly provides that s. 51(2) of the Tenant Protection Act is paramount. The appeal is therefore dismissed.
[3] Costs fixed in the total amount of $7,500. [page481]