CITATION: Fedorchuk v. 72056 Ontario Ltd., 2016 ONSC 207
DIVISIONAL COURT FILE NO.: 233/15
TSL-58616-14-RV DATE: 20160108
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, THORBURN AND ABRAMS JJ.
BETWEEN:
DAROUSIA FEDORCHUK
Appellant
– and –
72056 ONTARIO LTD.
Respondent
Conner Harris and Garett Schromm, for the Appellant
Robert J. Drake and Sanja Sopic, for the Respondent
Brian A. Blumenthal, for the Landlord and Tenant Board
HEARD at Toronto: January 8, 2016
SACHS J. (ORALLY)
[1] By an order dated December 22, 2014, the Landlord and Tenant Board (the “Board”) terminated the appellant’s tenancy under s. 93 of the Residential Tenancies Act, 2006 (the “Act”) after concluding that the appellant was a superintendent and that she occupied a superintendent’s premises (the “December 2014 Decision”). In the December 2014 Decision the Board made the following findings:
(i) The appellant managed the residential complex including collecting and depositing rent, negotiating new tenancies and arranging for work on the premises to be done and paid for.
(ii) The appellant paid less than market value rent for the premises she was occupying.
(iii) Even though there was no written employment agreement, the tenant provided services and received consideration in the form of reduced rent.
[2] In response to a request from the appellant, the Board initiated a review of the December 2014 Decision. It did so because the December 2014 Decision failed to address a threshold issue, namely, whether at the time the tenancy agreement was entered into, it was an agreement with respect to superintendent’s premises. This in turn required making a determination as to whether when the tenancy agreement was entered into, it was part of the employment relationship that had been found to exist between the landlord and the appellant.
[3] During the review hearing the Board heard evidence on this issue and, relying in part on the appellant’s evidence that she was offered the rental unit in exchange for a promise to help manage the residential complex, found that the employment relationship and the tenancy agreement were part of the same agreement. On this basis, on May 8, 2015, the Board denied the review and confirmed the December 2014 Decision (the “Review Decision”).
[4] The appellant is appealing the Review Decision. The appellant acknowledges that appeals only lie to this Court on questions of law.
[5] The appellant argues that the Board erred in law in its considerations regarding the question of whether the appellant was employed by the landlord. According to the appellant, the Board on the Review Hearing refused to hear evidence regarding consideration, which was both unfair and rendered the Board unable to make a finding that an employment relationship existed between the appellant and the landlord.
[6] What this submission ignores is the fact that the Review Hearing was not dealing with whether an employment relationship existed between the appellant and the landlord. That finding had been made in the December 2014 Decision. It was only dealing with the question of whether that employment relationship was part of the tenancy agreement.
[7] The appellant also argued that the Board erred in law by reversing the burden of proof. In making this submission the appellant acknowledges that in paragraph 17 of the Review Decision, the Board correctly instructed itself as to the appropriate onus of proof in the application before it, namely, that the landlord has the onus to prove that the appellant was employed as a superintendent and occupied a superintendent’s premises. However, according to the appellant, the Board began by incorrectly assuming that there was an employment relationship that was part of the tenancy, and then worked backwards relying only on evidence that supported its assumption. In this regard the appellant asserts that the Board “cherry picked” from the appellant’s evidence and where the appellant’s evidence did not confirm its assumption, it found that it did not believe the appellant.
[8] As fact finders the Board is entitled to accept part of witness’s evidence, while rejecting other parts of that evidence. The Board’s findings with respect to credibility cannot be the subject of an appeal before this Court. Reading the decision as a whole, we see no merit to the appellant’s assertion that the Board reversed the onus of proof.
[9] The appellant also argues that the Board erred in law in finding that the arrangement between the appellant and the landlord justified a termination on the basis of s. 93 since that arrangement was not formal and was ad hoc and coincidental. In this regard the appellant alleges that there was no express recognition of the duties and the consideration for being a superintendent. Whether or not the relationship between the appellant and the landlord was formal and express enough to meet the requisite requirements to justify a termination under s. 93 is at best a question of mixed fact and law. It does not raise a question of law that would allow this Court to overturn the Board’s findings.
[10] For these reasons the appeal is dismissed.
COSTS
[11] I have endorsed the back of the Appeal Book, “For reasons given orally by Sachs J. this appeal is dismissed. As agreed by the parties the appellant must vacate the premises by the end of February, 2016, and the appellant is to pay the respondent landlord its partial indemnity costs of this appeal, fixed in the amount of $7,500.00, all inclusive.”
___________________________ SACHS J.
THORBURN J.
ABRAMS J.
Date of Reasons for Judgment: January 8, 2016
Date of Release: February 3, 2016
CITATION: Fedorchuk v. 72056 Ontario Ltd., 2016 ONSC 207
DIVISIONAL COURT FILE NO.: 233/15
TSL-58616-14-RV DATE: 20160108
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, THORBURN AND ABRAMS JJ.
BETWEEN:
DAROUSIA FEDORCHUK
Appellant
– and –
72056 ONTARIO LTD.
Respondent
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: January 8, 2016
Date of Release: February 3, 2016