CITATION: Marshall v. Brady, 2022 ONSC 2158
DIVISIONAL COURT FILE NO.: 843/21
LANDLORD AND TENANT BOARD FILE NO.: SOL-20854-21
DATE: 20220406
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Lederer and Matheson JJ.
BETWEEN:
LESLIE MARSHALL AND PAUL MARSHALL
Appellants
(Tenants)
– and –
KEVIN BRADY and CAROL BRADY
Respondents
(Landlords)
Derek Chou, for the Appellants/Tenants
Bruce MacDonald, for the Respondents/Landlords
HEARD at Toronto (by videoconference): April 6, 2022
Oral Reasons for Judgment
Matheson J. (Orally):
[1] This is a statutory appeal by the tenants from the Landlord and Tenant Board (“LTB”) decision of Member Ebner dated September 21, 2021, terminating the Appellants’ tenancy. On October 5, 2021, Member Mulima denied the request to review the order and confirmed that the order remained unchanged.
[2] The Tenant seeks an order allowing this appeal and setting aside the LTB order. The Landlord seeks an order dismissing this appeal and vacating the stay order of this court.
[3] The Landlords had applied to evict the Tenants to allow Ms. Brady’s mother to move into the property due to her declining health and need for assistance. She is in her 80s. The Board granted the application.
[4] The issues raised on this appeal were raised before the Board. The Tenant challenges the Board finding that the Landlords intended, in good faith, for the mother to occupy the rental unit. There was evidence about an earlier application on the same grounds, after which the mother had not moved in. There was evidence about a winter trailer in Florida. These issues, raised by the Tenants, were the subject of responding evidence.
[5] In the decision dated September 21, 2021, the Member found that the Landlords required the rental unit in good faith for the purpose of residential occupation by Ms. Brady’s mother and ordered the tenancy terminated. The Member addressed the issues raised and found that the current application was served in good faith based on the mother’s current declining health status and her requirement for living assistance.
[6] On this appeal, the Tenants seek to adduce new post-hearing evidence about the mother living in Florida this past winter. They submit that the Board erred in determining that the Eviction Notice was served on a good faith basis and that the mother’s use of the property would constitute residential and full-time occupancy.
[7] An appeal lies to the Divisional Court from the LTB on a question of law only, pursuant to s. 210 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17.
[8] We conclude that the appeal raises no question of law, and the Court therefore has no jurisdiction under s. 210 of the RTA. The Tenants are essentially challenging the factual findings of the Board, which are not the subject of appeal. Both the finding of good faith and the finding of intended full time occupancy are findings of fact. There was no extricable issue of law and no error of law. The exceptional circumstances referred to by counsel, in which a factual matter may give rise to an error of law, do not apply in this case. The new evidence, even if admitted, does not give rise to an error of law.
Orders
[9] This appeal is dismissed. The stay of the Landlord and Tenant Board order is lifted immediately but the Sheriff shall not carry out the enforcement of the eviction order before May 1, 2022. The Tenants shall pay costs to the Landlords in the agreed amount of $3,000, all inclusive.
Matheson J.
I agree _______________________________
Swinton J.
I agree _______________________________
Lederer J.
Date of Oral Reasons for Judgment: April 6, 2022
Date of Written Release: April 11, 2022
CITATION: Marshall v. Brady, 2022 ONSC 2158
DIVISIONAL COURT FILE NO.: 843/21
LANDLORD AND TENANT BOARD FILE NO.: SOL-20854-21
DATE: 20220406
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Lederer and Matheson JJ.
BETWEEN:
LESLIE MARSHALL AND PAUL MARSHALL
Appellants
(Tenants)
– and –
KEVIN BRADY and CAROL BRADY
Respondents
(Landlords)
ORAL REASONS FOR JUDGMENT
Matheson J.
Date of Oral Reasons for Judgment: April 6, 2022
Date of Written Release: April 11, 2022