CITATION: Weller v. Khalifa, 2020 ONSC 5507
DIVISIONAL COURT FILE NO.: 284/19 LANDLORD AND TENANT BOARD
FILE NO.: TNL-09704-18
DATE: 20200826
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, BACKHOUSE and L.A. PATTILLO JJ.
BETWEEN:
ANGELIKA WELLER
Landlord/Applicant/Respondent by Appeal
– and –
BASIT KHALIFA
Tenant/Respondent/Appellant by Appeal
Muhammad Zafar, for the Landlord/Applicant/Respondent by Appeal
Viviane Kone, for the Tenant/Respondent/Appellant by Appeal
HEARD at Toronto: (video conference) August 26, 2020
SACHS J. (Orally)
[1] Our jurisdiction in this appeal is confined to questions of law. The appellant alleges that the Board made three major errors of law:
(1) It erred in law in its interpretation of the term “rent”.
(2) It failed to apply the right legal test for determining whether there was a tenancy agreement.
(3) It erred in law in finding that there was a forbearance agreement.
Interpretation of the word “Rent”
[2] We disagree with the appellant that the Board made a legal determination that consideration paid to a third party (in this case, condo fees paid directly to the condominium corporation) could not constitute rent. What the Board decided is that on the evidence before it in this case, the payment of condo fees did not constitute “rent” as defined by Section 2 of the Residential Tenancies Act, 2006. This is clear from paragraph 17 of the Board’s decision where the Board states:
On the evidence, the payment of condo fees does not constitute “rent” as defined by Section 2 of the Act (emphasis added)
[3] This was a finding of mixed fact and law and does not raise a question of law alone.
Tenancy Agreement
[4] The appellant alleges that the Board never turned its mind to the definition of a tenancy agreement set out in Section 2(1) of the Residential Tenancies Act, 2006. In Section 2(1), a tenancy agreement is defined as “a written, oral or implied agreement between a tenant and a landlord for occupancy of a rental unit and includes a license to occupy the unit”.
[5] According to the appellant, the Board failed to consider whether there was an implied tenancy or a license to occupy the unit. We disagree. At paragraph 15 of the Board’s decision, it focused on the question of what the nature of the relationship between the appellant and the respondent was and found that on the facts of this case there was no basis for concluding that the relationship was one of landlord and tenant. In doing so, the Board referred specifically to the only piece of documentary evidence before it as to the nature of the relationship, which makes no reference to the appellant occupying the unit. It only states that the appellant would be managing the unit and that the respondent’s ex-husband “would be taking over” the unit. The Board’s conclusion on the issue of whether there was a tenancy agreement between the parties was a determination of mixed fact and law and raises no question of law alone.
The Forbearance Agreement
[6] There is no finding of a forbearance agreement in the Board’s Original Order. The only reference to such an agreement occurs in the Review Order. In this case, there was evidence that the respondent’s ex-husband asked her not to sell the unit and that she agreed not to do so as long as the condominium fees were paid. Thus, there was no error, let alone an error in law, in referring to a forbearance agreement.
Other Issues
[7] While not pursued in oral agreement, there were other issues the appellant raised in his factum that we will also address. They concerned the fact that the respondent did not appear at the hearing before the Board (she lives in Italy) and that her evidence was given by the paralegal who appeared on her behalf at the hearing. According to the appellant, this resulted in a denial of natural justice. It is clear that the Board has a very broad discretion as to the type of evidence it is permitted to admit and rely on. It is permitted to rely on the evidence of a party’s representative and to rely on hearsay evidence. In this case, there was no objection by the appellant at the hearing to the admission of the paralegal’s evidence and no request to cross-examine the respondent.
Conclusion
[8] For these reasons, we do not except that the appellant was denied procedural fairness. We also do not accept that the Board erred in law by ignoring key evidence or failing to appreciate relevant evidence. In our view, the Board considered all of the evidence before it and, based on that evidence, came to the conclusion it did that the Residential Tenancies Act, 2006 did not apply to the relationship between the appellant and the respondent. In doing so, it made no errors of law alone and committed no breach of the procedural fairness. Thus, the appeal must be dismissed.
[9] In view of the financial and medical circumstances of the appellant, and in view of the fact that the respondent’s counsel did not bring or file a costs outline, we are limiting the respondent’s costs to $2,500 all inclusive. The appellant is to pay the respondent costs fixed in the amount of $2,500.
Sachs J.
I agree _______________________________
Backhouse J.
I agree _______________________________
L.A. Pattillo J.
Date of Oral Reasons for Judgment: August 26, 2020
Date of Release: September 16, 2020
CITATION: Weller v. Khalifa, 2020 ONSC 5507
DIVISIONAL COURT FILE NO.: 284/19 LANDLORD AND TENANT BOARD
FILE NO.: TNL-09704-18
DATE: 20200826
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, BACKHOUSE and L.A. PATTILLO JJ.
BETWEEN:
ANGELIKA WELLER
Landlord/Applicant/Respondent by Appeal
– and –
BASIT KHALIFA
Tenant/Respondent/Appellant by Appeal
ORAL REASONS FOR JUDGMENT
Sachs J.
Date of Oral Reasons for Judgment: August 26, 2020
Date of Release: September 16, 2020