Fraser et al. v. Beach et al. [Indexed as: Fraser v. Beach]

75 O.R. (3d) 383

[2005] O.J. No. 1722

Docket: C42656

Court of Appeal for Ontario,

Catzman, Rosenberg and Juriansz JJ.A.

May 3, 2005

Courts -- Jurisdiction -- Superior Court of Justice -- Residential tenancies -- Eviction of tenants -- Ontario Rental Housing Tribunal -- The Ontario Rental Housing Tribunal having exclusive jurisdiction to terminate residential tenancies -- Superior Court of Justice not having jurisdiction to order eviction of tenants -- Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 11(2), 101 -- Tenant Protection Act, 1997, S.O. 1997, c. 24.

Landlord and tenant -- Residential tenancies -- Eviction of tenants -- Ontario Rental Housing Tribunal -- Jurisdiction of Superior Court of Justice -- The Ontario Rental Housing Tribunal having exclusive jurisdiction to terminate residential tenancies -- Superior Court of Justice not having jurisdiction to order eviction of tenants -- Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 11(2), 101 -- Tenant Protection Act, 1997, S.O. 1997, c. 24.

The plaintiffs were a group of neighbours who lived near an illegal rooming house in Ottawa. They sued the landlords seeking an injunction restraining them from operating the rooming house. The landlords, who had been convicted of operating a rooming house without a licence, consented to an order granting an injunction. The injunction order provided, however, that the neighbours would take no steps to enforce it pending notice to be given to the tenants or to allow for the orderly sale of the property. The landlords applied to the Ontario Rental Housing Tribunal for an order terminating the appellants' tenancies but, on October 27, 2003, the Tribunal refused the landlords' application. Faced with the continued operation of the rooming house, the neighbours returned to the Superior Court on notice to the tenants and obtained an order dated December 16, 2003 requiring the tenants to vacate the rooming house on or before January 15, 2004. The tenants appealed on the basis that the court lacked jurisdiction to make the order.

Held, the appeal should be allowed.

The Superior Court of Justice has broad jurisdiction to grant an injunction, but the jurisdiction of a superior court may be limited by statute. Since the Tenant Protection Act, 1997 applied to the rooming house and the relationship between its inhabitants, the question on the appeal was whether the Act unequivocally indicated the legislature's intent to limit the court's jurisdiction to make an order evicting a residential tenant. The following provisions of the Act were of central importance. Section 39(1) provides "A tenancy may be terminated only in accordance with this Act." Section 41(b) provides: "A landlord shall not recover possession of a rental unit subject to a tenancy unless ... an order of the Tribunal evicting the tenant has authorized the possession." Subsection 157(2) provides "The Tribunal has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act." Finally s. 2(1) provides that the Tenant Protection Act applies with respect to rental units in residential complexes "despite any other Act" and s. 2(4) specifies that if a provision of the Tenant Protection Act conflicts with a provision of another Act (other than the Human Rights Code, R.S.O. 1990, c. H.19), the provision of the Tenant Protection Act prevails. The combined effect of these provisions was to oust the jurisdiction of the Superior Court to make an order requiring the tenants to vacate the premises. The statute clearly provides that only the Tribunal may make [page384] an order terminating a tenancy and evicting a tenant. Therefore, the appeal should be allowed and the Superior Court's order dated December 16, 2003 requiring the tenants to vacate the premises should be set aside.

APPEAL from the order of Chadwick J. of the Superior Court of Justice dated December 16, 2003.

Cases referred to 80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., 1972 535 (ON CA), [1972] 2 O.R. 280, 25 D.L.R. (3d) 386 (C.A.); Board v. Board, 1919 546 (UK JCPC), [1919] A.C. 956, 48 D.L.R. 13, 121 L.T. 620, 35 T.L.R. 635, [1919] 2 W.W.R. 940 (P.C.); Michie Estate v. Toronto (City), 1967 202 (ON SC), [1968] 1 O.R. 266, 66 D.L.R. (2d) 213 (H.C.J.) Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 11(2) [as am.], 101 Human Rights Code, R.S.O. 1990, c. H.19 Tenant Protection Act, 1997, S.O. 1997, c. 24, ss. 1 "rental unit""residential complex""tenancy agreement""tenant" [as am.], 2(1),(4), 39(1), 41(b), 53(1)(c), 69(1), 157(2)

Michael Bossin, for appellant Richard Fraser. Bruce F. Simpson, for respondent Peter Beach and Noreen Moffat.

The judgment of the court was delivered by

JURIANSZ J.A.: --

Introduction

[1] The appellants are the residential tenants of an illegal rooming house in Ottawa. The respondents are neighbours who brought an action against the landlords seeking damages for nuisance and for an interim and final injunction restraining them from operating the rooming house. The defendants, who did not participate in the appeal, are the landlords of the rooming house and have been convicted of operating a rooming house without a licence and fined pursuant to a city by-law.

[2] The single legal issue in this appeal is whether the Superior Court of Justice has jurisdiction to order the eviction of the tenants, or whether the Ontario Rental Housing Tribunal has exclusive jurisdiction to do so.

[3] The neighbours' action against the defendants was settled upon the defendants consenting to an injunction dated May 13, 2002 enjoining them from using the property as a rooming house. The tenants had no notice of the action or the injunction. The order granting the injunction provided that the neighbours would take no steps to enforce it prior to August 1, 2002 in order to allow notice to be given to the tenants or to allow for the orderly sale of the property. [page385]

[4] The Ontario Rental Housing Tribunal, on October 27, 2003, refused the landlords' application for an order terminating the appellants' tenancies. I will return to the basis for that decision later in these reasons.

[5] Faced with the continued operation of the rooming house, the neighbours returned to the Superior Court on notice to the tenants, and obtained an order dated December 16, 2003 requiring the tenants to vacate the rooming house on or before January 15, 2004.

[6] The tenants appeal the granting of that order on the basis the court lacked jurisdiction to make it.

Discussion

[7] The Superior Court of Justice has broad jurisdiction to grant an injunction. Section 11(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that the Superior Court of Justice is a superior court of record that "has all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario". This provision preserves the common law powers historically exercised by courts of common law and equity in England and Ontario. Section 101 of the Courts of Justice Act provides that the Superior Court may grant an interlocutory injunction or mandatory order where it appears just or convenient to do so and that such an order "may include such terms as are considered just".

[8] The court's jurisdiction, however, is not fixed. It has long been settled that the jurisdiction of a superior court may be limited by statute. In Board v. Board (1919), 1919 546 (UK JCPC), 48 D.L.R. 13, [1919], W.W.R. 940 (P.C.), at p. 18 D.L.R., Viscount Haldane, in reviewing cases dating as far back as 1774, said that "nothing shall be intended to be out of the jurisdiction of a superior court, but that which specially appears to be so". In Michie Estate v. Toronto (City), 1967 202 (ON SC), [1968] 1 O.R. 266, 66 D.L.R. (2d) 213 (H.C.J.), at p. 268 O.R., Stark J. wrote that "... the Supreme Court of Ontario has broad universal jurisdiction over all matters of substantive law unless the Legislature divests from this universal jurisdiction by legislation in unequivocal terms". Brooke J.A., speaking for this court in 80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., 1972 535 (ON CA), [1972] 2 O.R. 280, 25 D.L.R. (3d) 386 (C.A.), stated at p. 282 O.R."As a superior Court of general jurisdiction, the Supreme Court of Ontario has all the powers that are necessary to do justice between the parties. Except where provided specifically to the contrary, the Court's jurisdiction is unlimited and unrestricted in substantive law in civil matters."

[9] The question on this appeal is whether the Tenant Protection Act, 1997, S.O. 1997, c. 24, unequivocally indicates the legislature's [page386] intent to limit the court's jurisdiction to make an order evicting a residential tenant.

[10] There is no doubt that the Tenant Protection Act applies to the rooming house and the relationship between its inhabitants and the landlords, despite the fact that it is operated contrary to the city's by-law. Subsection 2(1) specifies that the Act "applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary". The Act defines "rental unit" as "any living accommodation used or intended for use as rented residential premises". The definition specifically includes, in subparagraph (b), a room in a rooming house. A "tenant" is defined to include "a person who pays rent in return for the right to occupy a rental unit" and "tenancy agreement" means "a written, oral or implied agreement between a tenant and a landlord for occupancy of a rental unit ...". The rooming house itself falls within the definition of "residential complex" as it is a "building ... in which one are more rental units are located".

[11] These definitions, which are clear, do not exclude an illegal rooming house from their application. Not only does the text of the Act provide no basis for holding otherwise, it would be inconsistent with the purpose of the Act to withhold the protections it provides from residents of the illegal residential units leaving them at the mercy of landlords. I conclude that the Act applies to the relationship between the landlords and the tenants in this case.

[12] The neighbours submit that the Tenant Protection Act governs only relationships between landlords and tenants and does not contemplate relationships between neighbours or municipal authorities on one side and landlords and tenants on the other. They point out that s. 69(1) of the Act allows only a landlord to apply to the Tribunal for an order terminating a tenancy and evicting a tenant. It does not contain provisions allowing a municipal authority to apply to evict tenants of an illegal unit, nor does it provide for such an application by neighbours seeking the eviction of tenants creating a nuisance. The neighbours submit, however, that a superior court had such jurisdiction at common law and the Tenant Protection Act does not oust that jurisdiction.

[13] The neighbours submit that the Superior Court's order that the tenants vacate the premises was simply the method of enforcing its earlier order restraining the landlords from operating the illegal rooming house. The earlier order is not attacked. They say it does not make sense to read the Tenant Protection Act as taking away the rights of governments and private persons simply because they are neither landlords nor tenants. They submit that the activities of residents of an illegal [page387] rooming house may affect the health and safety of neighbours, and that persons so affected must have a remedy. Likewise, a city must be able to enforce its by-laws. It cannot be the case, they say, that a landlord can continue to operate an illegal rooming house in flagrant contravention of the by-law while a city remains powerless to do anything about it. (In this case, the city is not a participant in the proceedings.)

[14] I do not accept these submissions. The following provisions of the Act are of central importance. Section 39(1) provides "A tenancy may be terminated only in accordance with this Act." These words could not be more unequivocal. Moreover, s. 41(b) provides: "A landlord shall not recover possession of a rental unit subject to a tenancy unless ... an order of the Tribunal evicting the tenant has authorized the possession." Section 157(2) provides "The Tribunal has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act." Finally s. 2(1) provides that the Tenant Protection Act applies with respect to rental units in residential complexes "despite any other Act" and s. 2(4) specifies that if a provision of the Tenant Protection Act conflicts with a provision of another Act (other than the Human Rights Code, R.S.O. 1990, c. H.19), the provision of the Tenant Protection Act prevails.

[15] I am satisfied that the combined effect of these provisions is to oust the jurisdiction of the Superior Court to make an order requiring the tenants to vacate the premises. The statute clearly provides that only the Tribunal may make an order terminating a tenancy and evicting a tenant.

[16] The neighbours' plight cannot affect this jurisdictional result as it is dictated by the statute. However, I do not agree with the neighbours' submission that this result leaves them without a remedy.

[17] First, it clearly remains within the Superior Court's jurisdiction to restrain behavior that constitutes a nuisance. In my view, a just and convenient remedy for behavior that creates a nuisance would be one that was directed to the behaviour of the perpetrators rather than their place of abode.

[18] Second, I do not agree that the landlord is unable to secure the tenants' eviction under the Act thus hindering the neighbours' application to enforce the May 13, 2002 order. The neighbours point out that the landlords' application to the Tribunal to evict the tenants was refused. The Tribunal's decision was a consequence of the wording of the landlords' application and the provision of the Act upon which they relied, s. 53(1)(c). Subsection 53(1)(c) permits a landlord to give notice of termination of a tenancy if the landlord [page388] requires possession of the rental unit to do repairs or renovations that are so extensive that a building permit and vacant possession are required. The landlords, while making reference to the Superior Court's injunction and their conviction for operating a rooming house without a licence, applied to evict the tenants in order to convert the premises "to larger self-contained apartments or to a single-family dwelling". Section 71 of the Act provides that the Tribunal shall not make an order evicting a tenant pursuant to a landlord's application under s. 53, unless the landlord has obtained the necessary permits required to carry out the activity on which the notice of termination is based. The landlords, in this case, had not obtained the requisite building permits needed to convert the rooming house. The Tribunal considered itself bound by the statute to refuse the application they had brought.

[19] The consideration of the ambit and application of other provisions of the Act to which the landlord might resort is a matter for the Tribunal and not for this court. Likewise, whether the landlords have made conscientious and diligent efforts to comply with the May 13, 2002 order to cease operating a rooming house is a matter for the Superior Court on a proper motion.

Decision

[20] I would allow the appeal and set aside the Superior Court's order dated December 16, 2003 requiring the tenants to vacate the premises.

[21] Counsel for the parties indicate that neither side is seeking costs. Accordingly, I would make no order as to costs.

Appeal allowed.