COURT FILE NO.: 36/03
DATE: 20031218
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DUNNET, epstein and c. campbell jj.
B E T W E E N:
LESTER LOBO
Tenant
(Appellant)
- and -
RONALD KWAN
Landlord
(Respondent)
In Person
Joseph Kary, for the Respondent
HEARD: December 18, 2003
DUNNET J.: (Orally)
[1] This is an appeal from an eviction order. The appellant submits that the adjudicator erred in appreciating the precise nature of the evidence; she failed to address and weigh the evidence and she failed to apply the proper standard of proof in finding that the respondent acted in good faith. In addition, the appellant was not permitted to present his case in its entirety.
[2] In her reasons, the adjudicator found that the respondent in good faith required possession of the premises and there was no evidence to support the hypothetical reasons of the appellant for the respondent’s request for possession.
[3] The appellant fully argued his case before us as if we were the Court of first instance. Assuming that the facts as alleged by the appellant are true, the issues concern matters of fact. The only appeal to this Court is on a question of law (s. 196(1) of the Tenant Protection Act, 1997).
[4] The question of whether the appellant adduced sufficient evidence relating to the issue of bad faith to require the respondent to present evidence to the contrary, and whether the evidence adduced in reply was sufficient, is one of fact, which is not subject to appeal to this Court. Having heard fully the submissions that the appellant claims not to have been able to make before the adjudicator, we are not persuaded that bad faith has been made out.
[5] Without deciding whether or not the onus in Gallupe v. Birch [1998] B.C.J. No. 1023 (S.C.) should be adopted by this Court, the allegations of the appellant do not, in any event, suffice to shift the burden.
[6] Accordingly, the appeal is dismissed. There will be an order for eviction, which is not to be enforced before January 15, 2004. Costs of the appearances before the Divisional Court are payable by the appellant to the respondent and are fixed at $2,500 inclusive of disbursements and GST. There will be an order dispensing with approval of this order.
DUNNET J.
EPSTEIN J.
C. CAMPBELL J.
Date of Reasons for Judgment: December 18, 2003
Date of Release: December 19, 2003
COURT FILE NO.: 36/03
DATE: 20031218
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DUNNET, epstein and c. campbell jj.
B E T W E E N:
LESTER LOBO
Tenant
(Appellant)
- and -
RONALD KWAN
Landlord
(Respondent)
ORAL REASONS FOR JUDGMENT
DUNNET J.
Date of Reasons for Judgment: December 18, 2003
Date of Release: December 19, 2003