Ontario Superior Court of Justice, Divisional Court

Court File No. 715/00

Date: 2001-07-09

Lane, Chapnik and Cumming JJ.

Counsel:

Shelley Levine, for appellant.

Lai-King Hum, for respondent.

The judgment of the court was delivered by

Cumming J.:—

The Appeal

[1] This is an appeal under s. 196 of the Tenant Protection Act, 1997, S.O. 1997, c. 24 (the "TPA"), of the Order of Member T.A. McDermott of the Ontario Rental Housing Tribunal ("Tribunal") dated October 4, 2000. The Tribunal ordered that the tenancy between the appellant tenant, Paul Beljinac, and the landlord, Walter Salter, be terminated. The Tribunal found that the termination complied with the requirements of s. 51(1) of the TPA, which reads:

51(1) A landlord may, by notice, terminate a tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation by the landlord, the landlord's spouse or same-sex partner or a child or parent of one of them.

[2] The landlord, William Salter, has two adjacent buildings on the subject property which in total have six residential units. The landlord lives in a main floor apartment of one building with his spouse and two children. An adult son of the landlord, David, lives in the basement one bedroom apartment of the same building, with his spouse and an infant.

[3] The tenant, Mr. Beljinac, whose eyesight is substantially impaired, has lived for some 24 years in the second floor two bedroom apartment of the same building.

[4] On June 1, 2000, the landlord gave the tenant notice that the tenant's unit was required for his son, David, and his family, and that pursuant to s. 51(1), the tenancy would be terminated on July 31, 2000. The tenant appealed unsuccessfully to the Tribunal.

[5] An appeal to this court under s. 196 of the TPA must be on a question of law. First, the appellant submits the Tribunal erred in its interpretation of s. 51(1) and hence, misapplied the law. Second, the appellant submits that the Tribunal failed to apply s. 84(1) of the TPA properly, which gives the Tribunal discretion to delay or refuse the eviction in cases where it would be fair to do so.

[6] The appellant asserts there are two possible interpretations to s. 51(1). The first is referred to by the appellant as the "motives-primary" test. This requires the Tribunal as finder of fact to assess all the landlord's motives for giving the notice to terminate the tenancy. It is only when the intent to occupy the unit is the primary motive that the landlord is able to establish good faith and succeed.

[7] The second interpretation is referred to as the "motives-immaterial" test. This holds that once a landlord establishes a genuine intent to have a family member occupy the unit he thereby establishes good faith and succeeds.

[8] A finder of fact must always weigh the various facts and inferred motives attributed to the landlord to determine whether or not the landlord's professed intent is genuine in seeking to get possession of the unit for a family member. The tenant submits that the Tribunal must go further and weigh all the motives of the landlord one against the other to determine an order of primacy. The tenant submits that if, for example, an economic consideration was found to be the primary motive, then the landlord would be acting unlawfully notwithstanding a genuine intent to gain possession for a family member. I disagree. My reasons follow.

Analysis

[9] Turning to the case at hand, there were various facts the Tribunal took into account in assessing the landlord's motives. One significant fact is that the tenant, Mr. Beljinac, pays only $668.00 rent per month, given the statutory protection to continuing tenants in respect of rent that can be charged. In contrast, an identical two bedroom second floor apartment in the adjacent building of the landlord's six-unit complex became vacant in July 2000, with the result that the market-value rent of $1,450.00 could be charged for that identical unit.

[10] A second fact is that the landlord had applied unsuccessfully to the courts twice before to terminate Mr. Beljinac's tenancy, the last time being 1992. On both occasions, the asserted reason was that the landlord's mother required the apartment. His mother never did move into the complex, even when units later became vacant. Mr. Salter stated to the Tribunal in the hearing on the present application that his mother's health had deteriorated such that by the time a unit became vacant she was unable to move into the complex.

[11] The landlord admitted that economics was one consideration in his son, David, not moving into the vacant unit with a rent of $1,450.00 per month. Mr. Salter stated that his son required financial assistance and that he, Mr. Salter, could not afford to subsidize his son by letting him live in a unit at $750.00 per month while Mr. Beljinac continued to pay the below market rent of $668.00 per month.

[12] The landlord testified that his son needed the unit because of his son's new child and the desire for a second bedroom. As well, the landlord testified that it was more convenient for his extended family to have his son's family live in the same building as his own.

[13] The landlord offered Mr. Beljinac the basement suite presently occupied by David but this offer was rejected.

The Law

[14] The tenant argues the wording . . in good faith requires possession . . ." (my emphasis) in s. 51(1) must mean more than merely a required factual finding that the landlord truly in good faith intends to take possession for the purpose of giving the unit to a family member. Hence, the tenant submits that the first proffered interpretation of s. 51(1) must apply, that is, the so-called "motives-primary" test.

[15] The tenant argues that the finder of fact must weigh the various motives present and determine which is primary. The tenant says it is not sufficient that the landlord simply has as one genuine motive that the landlord truly intends to have a family member live in the unit in question.

[16] In my view, the legislature in s. 51(1) was seeking to balance the interests of the tenant and the landlord. The tenant has an interest in maintaining a continuity of residence. The mere fact of an existing tenancy gives a property interest in the unit.

[17] The landlord, with the residual bundle of rights in the property, subject only to the tenancy, has a professed interest in gaining accommodation for a person within a defined group of family members. Both parties have common and legitimate interests, assuming the landlord is acting in good faith, that is, there is a genuine intent to occupy by a family member for the purpose of residential occupation.

[18] In my view, s. 51(1) charges the finder of fact with the task of determining whether the landlord's professed intent to want to reclaim the unit for a family member is genuine, that is, the notice to terminate the tenancy is made in good faith. The alternative finding of fact would be that the landlord does not have a genuine intent to reclaim the unit for the purpose of residential occupation by a family member.

[19] The TPA replaced the Landlord and Tenant Act, R.S.O. 1990, c. L.7 (the "LTA") [Part IV]. Section 103(1) of the LTA provides:

103(1) Despite section 98, 99, 100, 101 or 102, where a landlord in good faith requires possession of residential premises at the end of,

(a) the period of the tenancy; or

(b) the term of a tenancy for a fixed term,

for the purpose of occupation by himself or herself, his or her spouse or a child or parent of the landlord or the landlord's spouse, the period of the notice of termination required to be given is not less than sixty days.

[20] The case law establishes that under s. 103, a landlord need only show a genuine intention to terminate the tenancy for the purpose of occupation by a family member to satisfy the "good faith" requirement. See, for example, Decristofano v. Darr, [1986] O.J. No. 2029 (QL) (Dist. Ct.), at 3 [summarized 1 A.C.W.S. (3d) 335]; Duke's Trailer Court Ltd. v. Block, [1997] O.J. No. 2415 (QL) (Gen. Div.), at 6 and 7 [reported 10 R.P.R. (3d) 194]; and Re Higgins and Mathot (1983), 1983 1781 (ON SC), 45 O.R. (2d) 377 (Co. Ct.).

[21] In dealing with a similar provision of the Rent Act 1968 (U.K.), 1968, c. 23, Sch. 3, Part II, Case 10, para. (c), as amended, Stephenson L.J. in Kennealy v. Dunne, [1977] 2 All E.R. 16 (C.A.), at 23-4 stated:

[The word] "required" . . . does not mean "reasonably" required: it means no more than bona fide wanted and genuinely intended to be occupied as a residence at once, or at any rate within a reasonable time, but so wanted and intended whether reasonably or unreasonably, even from the landlord's point of view.

[22] This test of "required" was accepted and adopted by Gibson J. in applying s. 103 of the LTA: McLean v. Mosher (1992), 1992 7625 (ON SC), 9 O.R. (3d) 156 (Gen. Div.), at 159. See also Mehta v. Ibrahim, [1989] O.J. No. 1065 (QL) (Dist. Ct.).

[23] This interpretation is consistent with the ordinary meaning of the verb "requires". The Concise Oxford Dictionary 9th ed. (Clarendon Press, Oxford: 1995) at 1169 defines the verb "require" to mean "1. need; depend on for success or fulfilment (the work requires much patience)" and includes "6. wish to have (is there anything else you require?)"."

[24] Steele J. in the Divisional Court has stated ". . . the test of good faith is a genuine intention to occupy the premises and not the reasonableness of the landlord's proposal". See Feeney v. Noble (1994), 1994 10538 (ON SC), 19 O.R. (3d) 762 (Div. Ct.), at 764.

[25] In my view, the legal standard for the Tribunal as finder of fact remains the same under s. 51(1) of the TPA as seen in the case law interpreting s. 103(1) of the LTA.

[26] While it is relevant to the good faith of the landlord's stated intention to determine the likelihood that the intended family member will move into the unit, the Tribunal properly stops short of entering into an analysis of the landlord's various options: Ontario Rental Housing Tribunal Interpretation Guidelines (Eviction for Personal Use), at p. 3.

[27] Once a landlord is acting in good faith, then necessarily from the landlord's subjective perspective the landlord requires the unit for the purpose of residential occupation by a family member. That is sufficient to meet the s. 51(1) standard. The fact that the landlord might choose the particular unit to occupy for economic reasons does not result in failing to meet the s. 51(1) standard.

[28] The legislature has given the Tribunal the authority to refuse the landlord's application to terminate the tenancy notwithstanding that the landlord has a genuine intent to have a family member occupy the unit and hence, meets the s. 51(1) standard. Section 84 provides:

84(1) Upon an application for an order evicting a tenant or subtenant, the Tribunal may, despite any other provision of this Act or the tenancy agreement,

(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or

(b) order that the enforcement of the order of eviction be postponed for a period of time.

(2) Without restricting the generality of subsection (1), the Tribunal shall refuse to grant the application where satisfied that,

(a) the landlord is in serious breach of the landlord's responsibilities under this Act or of any material covenant in the tenancy agreement;

(b) the reason for the application being brought is that the tenant has complained to a governmental authority of the landlord's violation of a law dealing with health, safety, housing or maintenance standards;

(c) the reason for the application being brought is that the tenant has attempted to secure or enforce his or her legal rights;

(d) the reason for the application being brought is that the tenant is a member of a tenants' association or is attempting to organize such an association; or

(e) the reason for the application being brought is that the rental unit is occupied by children and the occupation by the children does not constitute overcrowding.

[29] The Tribunal must refuse the landlord's application if any of the requisite circumstances in s. 84(2) apply.

[30] The legislature has conferred upon the Tribunal a broad discretion in s. 84(1)(a) to refuse an order granting eviction "... unless satisfied, having regard to all the circumstances, that it would be unfair to refuse [the landlord]". The Tribunal can weigh the overall circumstances relevant to the situation of both the landlord and the tenant to provide what the Tribunal perceives to be a fair result.

Conclusion

[31] In my view, the Tribunal correctly applied the statutory test, by looking to all the relevant facts and determining that the landlord's notice to terminate the tenancy was given in good faith for the purpose of requiring possession of the rental unit for the purpose of residential occupation by the landlord's son and his family. I find the analysis and weighing of the various facts to have been carefully done. The findings are supported by the evidentiary record. The Tribunal made findings of credibility. The Tribunal believed the landlord and found he has a genuine intent to reclaim the residential unit in question for occupation by his son and his son's family. The Tribunal was entitled to make the findings of fact that it did.

[32] I also find that the Tribunal properly considered the relevant factors in exercising the broad discretion afforded under s. 84(1) in deciding not to refuse the landlord's application for an eviction order on the basis of fairness but to postpone the enforcement of the order of eviction for almost four months. See Peel Non-Profit Housing Corp. v. McNamara (1991), 1991 8219 (ON SCDC), 2 O.R. (3d) 414, 78 D.L.R. (4th) 606 (Div. Ct.); Finnermark v. Hum, [2000] O.J. No. 3727 (QL) (Div. Ct.), at 2 [summarized 100 A.C.W.S. (3d) 150].

Disposition

[33] For the reasons given, the appeal is dismissed.

[34] Costs are fixed in the amount of $500.00 plus G.S.T. and disbursements, payable to the respondent by the appellant.

[35] Appeal dismissed.