CITATION: Zhao v. Theologes, 2011 ONSC 7233
DIVISIONAL COURT FILE NO.: 395/11
DATE: 20111205
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN R.S.J., DAMBROT AND SWINTON JJ.
BETWEEN:
SU HUA ZHAO Appellant/Landlord
– and –
ARIS THEOLOGES Respondent/Tenant
Counsel:
David G. Molson, for the Appellant/ Landlord
Spiro Theologes, In Person
HEARD at Toronto: December 5, 2011
THEN R.S.J. (oraLLY)
[1] The appellant/landlord applied for an initial order terminating the tenancy under s.48(1)(a) of the Residential Tenancies Act, 2006¸ for the purpose of residential occupation by the landlord. The Member denied the application as the evidence on the hearing of the application disclosed that possession was sought for the children of the landlord and not for the landlord personally. The landlord subsequently applied under s.48(1)(a) and (c) on the basis, as disclosed in the landlord’s affidavit that, possession was sought on behalf of both the landlord and her children.
[2] This application was denied on the basis of the doctrine of res judicata. We are of the view that the doctrine of res judicata is not applicable and that, in any event, if applicable was subject to discretion (see Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460).
[3] The appeal must therefore be allowed and the order of June 10, 2011 should be set aside. The parties have filed with the Court, Minutes of Settlement, whereby the respondent agrees to vacate the residence and which deal with the issue of rent and the timing of the transition of the premises to the landlord.
[4] We are satisfied that the conditions are fair and reasonable and we are content that they should form part of the order of the Court.
COSTS
[5] I have endorsed the Appeal Book as follows: “The appeal is allowed and the order of June 10, 2011 is set aside for oral reasons. The Minutes of Settlement are to be attached and form part of the order of the Court. There shall be no order as to costs.”
THEN R.S.J.
DAMBROT J.
SWINTON J.
Date of Reasons for Judgment: December 5, 2011
Date of Release: December 13, 2011
CITATION: Zhao v. Theologes, 2011 ONSC 7233
DIVISIONAL COURT FILE NO.: 395/11
DATE: 20111205
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN R.S.J., DAMBROT AND SWINTON JJ.
BETWEEN:
SU HUA ZHAO Appellant/Landlord
– and –
ARIS THEOLOGES Respondent/Tenant
ORAL REASONS FOR JUDGMENT
THEN R.S.J.
Date of Reasons for Judgment: December 5, 2011
Date of Release: December 13, 2011