COURT FILE NO.: 188/05
DATE: 20050531
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
COLLETTE HAMILTON
Tenant
(Appellant)
- and -
DARIUSZ SZWAJKA
Landlord
(Respondent in Appeal)
Kenneth J. Hale, for the Tenant
David S. Strashin, for the Landlord
HEARD: May 31, 2005
o’driscoll J.: (Orally)
[1] The Landlord moves to quash the Tenant’s appeal on the basis that it does not involve any question of law as required by s.196 of the Tenant Protection Act, 1997 (TPA).
[2] The Tenant, in an affidavit, sworn May 30, 2005, admits that she told the Landlord that she was going to move out at the end of March, 2005. The Landlord took her at her word and agreed to that procedure, although, under the TPA, he might well have asserted otherwise.
[3] The Tenant proceeded to sell off some of her goods in the apartment. The Tenant did not move out. The Landlord went ex parte to the Tribunal and obtained an order on April 5, 2005 that the tenancy was over and that the tenant was to be out by April 15, 2005.
[4] The Tenant moved to set aside the ex parte order on April 25, 2005. On that day, the Tribunal, Ms. Buffa, refused to do so. On May 5, 2005, the Tribunal refused to grant a re-hearing and refused to set aside the order to vacate.
[5] In the aforesaid orders, on more than one occasion, the Tribunal found that there was an oral agreement between the parties that the Tenant would move out by March 31, 2005. On May 12, 2005, the Tenant filed a Notice of Appeal and obtained an automatic stay order. As of today, the Tenant is in possession of the apartment and has not paid rent for two months. As of June 1, 2005, tomorrow, she will owe the Landlord $2,224.32.
[6] In the interim, after the Tenant told the Landlord of her intent to move out, the Landlord advertised and re-rented the premises as of May 1, 2005. As a result of the Tenant overholding, the Landlord has had to make a monetary payment to the proposed new Tenant.
[7] Counsel for the Tenant bases his submissions for the dismissal of this motion on the allegation that the “forms” are all wrong and the Tribunal made the order based on the erroneous conclusion that there was a “notice”. The Landlord’s first language obviously is not English, as can be observed by the wording he put on the Tribunal’s forms. Notwithstanding what “boxes” the Landlord may have ticked, in his affidavits he swears and the Tribunal has found on more than one occasion, that the Tenant agreed to move out. The Tenant set the whole train in motion, then, for whatever reason, changed her mind.
[8] When all this is analyzed, s.188 of the TPA must be kept in mind. It, in effect, says that substance shall trump form. I find no question of law involved here. In my view, the motion and the notice of appeal were simply devices to stave off the inevitable. The appeal is without merit; it has no question of law. The motion is granted, the appeal is quashed and the certificate of stay is set aside.
[9] Costs of this motion are fixed at $750.00, all inclusive, payable by the Tenant to the Landlord, if demanded.
O’DRISCOLL J.
Date of Reasons for Judgment: May 31, 2005
Date of Release: June 9, 2005
COURT FILE NO.: 188/05
DATE: 20050531
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
COLLETTE HAMILTON
Tenant
(Appellant)
- and -
DARIUSZ SZWAJKA
Landlord
(Respondent in Appeal)
ORAL REASONS FOR JUDGMENT
O’DRISCOLL J.
Date of Reasons for Judgment: May 31, 2005
Date of Release: June 9, 2005