Court File and Parties

COURT FILE NO.: 473/04

DATE: 20040920

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: YUAN LIU and KENNETH HAU-KWONG LIU

• and – JOHN CHEN

BEFORE: GROUND J.

HEARD: September 20, 2004

COUNSEL: David S. Strashin, for the Landlords (Respondents in Appeal) John Chen, the tenant, In Person (Appellant in Appeal)

E N D O R S E M E N T

[1] This motion is brought by the landlords for an order quashing the tenant’s appeal and vacating the stay of the order of the Ontario Rental Housing Tribunal (the “Tribunal”) dated August 3, 2004, or in the alternative requiring that the appeal be expedited, or in the further alternative requiring the appellant to perfect his appeal within ten days.

[2] The order of Tribunal Member Senis, dated August 3, 2004, terminating the tenancy was denied review by the order of Tribunal Member Mervin, dated August 16, 2004.

[3] I agree with the reasons of Member Mervin, on the denial of the review, that the majority of the grounds for appeal in the tenant’s Notice of Appeal do not raise any issues of law on which this Court could grant an appeal.

[4] Mr. Chen, in his submissions today raised three issues which could arguably be questions of law. The first issue raised by Mr. Chen was that the application brought by the landlord required vacant possession of the third of the three units in the building, the other two having been vacated, for occupancy by the purchasers or their family. Mr. Chen appears to take the position that such application is not properly brought under ss. 70(2) of the Tenant Protection Act 1997 (the “Act”). In my view, this submission is without merit. The Act specifies that an application may be brought in respect of a complex containing not more than four units or in respect of a condominium unit, if the purchaser in good faith requires possession of the complex or of the unit for residential occupation by the purchaser or relatives of the purchaser. It is accordingly specifically contemplated that the purchaser may require occupation of three units in a complex for the purchaser and/or relatives of the purchaser.

[5] The second issue raised by Mr. Chen was that the Tribunal did not permit him to call as witnesses two of the three purchasers after the third purchaser had given evidence or permit Mr. Chen to cross-examine the purchaser who had given evidence about other properties owned by her. Aside from the fact that there is some law to the effect that the purchaser is not required to give viva voce testimony, (see Melhuish and Walsh v. 580472 Ontario Ltd.), it appears that Mr. Chen was clearly given the opportunity to cross-examine Ms. Mary Cho, one of the purchasers, as to the intentions of the purchasers with respect to the occupancy of the three units in the building. I am not satisfied that the refusal of the Tribunal to permit Mr. Chen to call the other purchasers or to ask Ms. Mary Cho questions relating to other properties owned by her constitutes an error of law appealable to this Court.

[6] The third issue raised by Mr. Chen arises from his suspicion that there was some collusion between the applicant landlords and the purchasers of the building and that the application was not made in good faith. The Tribunal at the initial hearing and on the refusal of the review has determined that the application has been brought in good faith and that the purchasers require possession of the three units in the building for their own use or for the use of their relatives. The determination of good faith is at best a question of mixed fact and law and in my view, is not appealable to this Court. It is also open to Mr. Chen, should he determine to do so, to bring a “bad faith application” before the Tribunal.

[7] Accordingly, I find that the appeal is without merit and the appeal is quashed and the stay of the order of the Tribunal, dated August 3, 2004, vacated. Mr. Chen is to vacate the premises by September 30, 2004. The deposit of the last month’s rent paid by Mr. Chen to a previous owner of the building is to be applied against the rentals payable for September, 2004.

[8] Approval of the form of order by the tenant is dispensed with. The parties may make brief written submissions to me as to the costs of this motion on or before October 15, 2004.

GROUND J.

DATE: September 20, 2004