CITATION: Banks v. Azman, 2019 ONSC 2542
DIVISIONAL COURT FILE NO.: DC-18-61-00
LANDLORD AND TENANT BOARD FILE NO.: CEL-77283-18
DATE: 2019-05-01
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.D. GORDON, BACKHOUSE, BALE JJ.
BETWEEN:
Wayne Banks
Appellant
– and –
Peter Azman
Respondent
John Richardson, for the Appellant
Gibrian A. Malicki-Sanchez, for the Respondent
HEARD at Brampton: April 12, 2019
THE COURT
Overview
[1] The Appellant appeals the decision of the Landlord and Tenant Board (the “Board”) made August 13, 2018. The Board ruled that the parties are governed by the Residential Tenancies Act, 2006, S.O. 2006 c. 17 (the “Act”) and that the Respondent is entitled to possession of the premises for his own residential occupation.
Factual Background
[2] There is a handwritten agreement signed by the parties on October 25, 2014 which the Applicant says provides for the sale of the property at 1285 Haig Blvd. to him. He says he went into possession of the property pursuant to that agreement, has made monthly payments in accordance with the agreement and has spent a considerable amount of money on capital repairs to the property, all in the belief that he would become owner.
[3] The Appellant asked the Respondent to complete the transaction contemplated by their agreement. The Respondent refused. In June of 2017 the Appellant brought an action in the Superior Court of Justice seeking specific performance and, in the alternative, damages. He was granted a certificate of pending litigation. That action is at the discovery stage.
[4] In July of 2018 the Respondent brought an application under the Act seeking possession of the property as a landlord who wished to occupy the property for his personal use.
[5] The matter proceeded to hearing on August 13, 2018. Both the parties were represented by counsel. The Board determined that the Appellant was occupying a rental unit in a residential complex and that the Act therefore applied. The Board went on to find that the Respondent had a good faith requirement for possession of the premises for the purpose of residential occupation. It ordered the Appellant to vacate the property on or before September 30, 2018.
Jurisdiction
[6] Section 210 of the Act provides that an appeal from the Board lies to the Divisional Court, but only on a question of law.
Standard of Review
[7] The Board was interpreting its home statute and has particular expertise with respect to the issues before it. Its decisions are reviewable on a standard of reasonableness.
[8] Inasmuch as the Appellant alleges he was denied natural justice and procedural fairness, this court, on review, is to simply consider whether the appropriate level of procedural fairness was accorded.
Analysis
[9] The Appellant argued that the Board did not have jurisdiction to adjudicate on this matter as the parties’ rights are to be determined in accordance with the agreement of purchase and sale into which they had entered.
[10] We disagree. This is not a matter of jurisdiction. The Board was clearly entitled to enter upon the inquiry it did and to determine the applicability of the Act to the parties at the date of the application.
[11] What the Appellant really takes issue with is the assessment of the evidence and the factual findings made by the Board, neither of which constitute a question of law, and in any event would be assessed on a standard of reasonableness.
[12] It is clear from the decision of the Board that it considered the two opposing positions taken by the parties and the evidence filed by each. The Board explained that its decision was tipped in favour of the Respondent by virtue of: (1) An affidavit of the Appellant in which he had described himself as a “Tenant” at the property; and (2) several monthly cheques from the Appellant to the Respondent which were labelled as rent. There is no appeal from the factual findings of the Board. The Board’s application of those facts to the law is to be considered on a standard of reasonableness. The issue is not whether we agree with the Board’s finding but whether it falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law. We are satisfied that it does.
[13] Having determined that the Act applied, the Board went on to consider whether the Respondent, in good faith, required possession of the property for his own use. It considered the evidence and concluded that he did. This was a factual determination from which no ground of appeal lies. That determination was, in any event, a reasonable one, available to it on the evidence.
[14] The Appellant alleges a breach of natural justice and procedural fairness because he had inadequate opportunity to address evidence filed by the Respondent on the day of the hearing. We note that the evidence in question was comprised of documents authored by the Appellant himself. We also note that he was represented by counsel and there was no suggestion at the hearing that he was taken by surprise, that he wished to address the new evidence, or that he sought an adjournment to do so.
[15] In the circumstances, we are not satisfied that there was a breach of natural justice or any procedural unfairness.
[16] Our main concern with this appeal was the effect our decision might have on the Superior Court proceedings. Counsel for both parties were asked whether the decision of the Board or this court would be relied upon by them as having determined the issue of the validity of the agreement of purchase and sale alleged by the Appellant. Both answered that the decision of the Board and this court would only be relied upon to determine who would have possession of the property pending the outcome of the Superior Court action.
Conclusion
[17] The appeal is dismissed. Given the time of year relative to the Appellant’s line of business, and given that he has paid each month to occupy the property (and will presumably continue to do so until he vacates) we order that the Appellant move from the premises on or before June 30, 2019.
[18] The Respondent shall have his costs of this appeal fixed at $3,500, all inclusive.
R.D. Gordon, J.
I agree _______________________________
Backhouse, J.
I agree _______________________________
Bale, J.
Released: _________________________
DIVISIONAL COURT FILE NO.: DC-18-61-00
LANDLORD AND TENANT BOARD FILE NO.: CEL-77283-18
DATE: 2019-05-01
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GORDON R.D., BACKHOUSE, BALE JJ.
BETWEEN:
Wayne Banks
Appellant
– and –
Peter Azman
Respondent
DECISION ON APPEAL
THE COURT
Released: May 1, 2019