CITATION: Hennick v. Muhammed, 2021 ONSC 4194
DIVISIONAL COURT FILE NO.: 19/34
DATE: 2021/06/11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Trimble and G.W. King JJ.
BETWEEN:
GAYLE HENNICK
Appellant (Tenant)
– and –
NURSTA MUHAMMED and SYED SABA
Respondents (Landlords)
Gayle Hennick, on her own behalf
Rohit Sharma and Shanthi Devanand, for the Respondents
Katia Snukal and Brian Blumenthal, for the Landlord and Tenant Board
HEARD at Hamilton by videoconference: June 9, 2021
The Court (orally)
[1] On July 8, 2019 the Landlord and Tenant Board (the “Board”) determined that the Landlords had entered into a valid agreement of purchase and sale and that the purchaser in good faith required possession of the rental unit. As a result, the Board terminated the Appellant Tenant’s tenancy. The issues on this appeal are whether the hearing was conducted in a procedurally fair manner and whether the appeal raises questions of law as required by the Residential Tenancies Act, 2006, S.O. 2006, Chap. 17 ( the “Act”) and, if so raised, whether the decision is correct.
[2] The Appellant Tenant submits that her appeal raises two questions of law:
(a) The Tribunal erred in not finding that the agreement of purchase and sale was an invalid agreement. Section 49(1) of the Act only allows a landlord to apply for vacant possession from the Board if the agreement of purchase and sale that is driving the request is a valid agreement. The Tenant submits that from the moment it was entered into the agreement of purchase and sale was not enforceable because the agreement required that the landlord deliver the purchaser vacant possession as of the date of closing, July 12, 2019. Since fulfilling this requirement depended on the actions of a third party, the Tenant, there was inherent uncertainty as to whether the requirement could be satisfied and thus the agreement was unenforceable. Implied in this argument is the Tenant’s assertion that the requirement to deliver vacant possession was a true condition precedent. We reject this submission. First, if this were true, it would never be possible for a landlord of residential premises consisting of three units or fewer to seek vacant possession of their property pursuant to s. 49(1) of the Act. Second, the requirement to deliver vacant possession is not a true condition precedent in the sense that that it cannot be waived to extend the closing if the purchaser under the agreement of purchase and sale is content to do so. Finally, the issue of how the agreement of purchase and sale should have been interpreted by the Board is a question of mixed fact and law.
(b) Second, the Tenant argues that the Board erred in its interpretation of the lease between the Landlords and the Tenant when it found that the Tenant, after the first renewal of the lease in December 2017, became a month to month tenant. According to the Tenant, since the lease between the parties was a standard form agreement, incorrectly interpreting that agreement raises an error of law. The essence of the Tenant’s argument on this point is that she only entered into the lease in question because the Landlords’ property manager represented to her that she could remain in the premises as long as she wanted. Thus, the clauses in the agreement that specified that the tenancy was a two year tenancy and at the end of the two years it became a month to month tenancy should not have been enforced. The Tenant’s submission on this point does not raise a question of law; at best it involves a question of mixed fact and law.
[3] The Tenant also raises what she alleges is a procedural fairness issue in respect of her argument about how the Landlord’s property manager induced her to enter into the lease. At the hearing the Tenant asked the Board to add the property manager as a party to the proceedings and to ensure that the property manager was in attendance at the hearing (by, among other things, issuing a summons to the property manager to attend). The Board rejected both of these requests and refused to adjourn the proceedings to allow the Tenant to summons the property manager herself. The Board has a broad discretion to control its own process and was entitled, in doing so, to find that if the Tenant wished the property manager to be in attendance at the hearing she should have taken steps to properly summons them for the hearing. The Board committed no error in principle in exercising its discretion in this way. Nor did it commit an error in refusing to add the property manager as a party to the hearing. Further, in assessing this submission it is important to note ( as the Board did) that the lease in issue was entered into after any discussions the Tenant may have had with the property manager and it contains, among other things, an “entire agreement” clause.
[4] For these reasons the appeal is dismissed. The Landlords did not provide a Bill of Costs. In view of this we are limiting their costs to $5000.00, all inclusive.
Sachs J.
Trimble J.
G. W. King J.
Released: June 11, 2021
CITATION: Hennick v. Muhammed, 2021 ONSC 4194
DIVISIONAL COURT FILE NO.: 19/34
DATE: 2021/06/11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Trimble and G.W. King JJ.
BETWEEN:
GAYLE HENNICK
Appellant (Tenant)
– and –
NURSTA MUHAMMED and SYED SABA
Respondents (Landlords)
REASONS FOR JUDGMENT
Released: June 11, 2021