CITATION: Zeta Psi Elders Association of Toronto v. Kavanaugh, 2022 ONSC 4142
DIVISIONAL COURT FILE NO.: 840/21 LANDLORD AND TENANT BOARD FILE NO.: TSL-07660-19
DATE: 20220713
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Stewart and Nishikawa JJ.
BETWEEN:
ZETA PSI ELDERS ASSOCIATION OF TORONTO Landlord (Respondent on Appeal)
– and –
SEAN KAVANAUGH Tenant (Appellant)
Spencer F. Toole, for the Landlord (Respondent on Appeal)
David Strashin, for the Tenant (Appellant)
HEARD at Toronto (by videoconference): July 13, 2022
ORAL REASONS FOR JUDGMENT
Swinton J. (Orally)
[1] Sean Kavanaugh appeals the decision of the Landlord and Tenant Board dated September 23, 2021 holding that the Residential Tenancies Act, 2006, S.O. 2006, c.17 did not apply to his tenancy because of the exemption in s. 5(j) of the Act. That section provides that the Act does not apply with respect to “premises occupied for business or agricultural purposes with living accommodation attached if the occupancy for both purposes is under a single lease and the same person occupies the premises and the living accommodation”.
[2] The Board found that the predominant purpose of the tenancy between the parties was to operate a business - namely, an Airbnb short-term rental business - in the residential premises. Therefore, the Board held that the exemption in s. 5(j) of the Act applied.
[3] An appeal lies to this Court only on a question of law (see s. 210(1) of the Act).
[4] The appellant has not demonstrated any error of law. The Board applied the predominant purpose test, which is the correct legal test (see Tauro v. Yu, 2018 ONSC 7319 (S.C.J.) at para. 33). Essentially the appellant challenges the findings of fact that the predominant use of the premises was for an Airbnb business and the Airbnb business was the appellant’s only source of income.
[5] The appellant raises issues of fact or, at best, mixed fact and law. As no error of law has been demonstrated, the appeal is dismissed.
[6] Costs to the respondent are fixed at $5,500 all inclusive.
[7] We make no order with respect to the continued occupation of the premises, as there is no claim for such relief before this Court, and no evidentiary basis or legal basis to support a claim for what would be essentially injunctive relief.
Swinton J.
I agree _______________________________ Stewart J.
I agree _______________________________ Nishikawa J.
Date of Oral Reasons for Judgment: July 13, 2022
Date of Written Release: July 15, 2022
CITATION: Zeta Psi Elders Association of Toronto v. Kavanaugh, 2022 ONSC 4142
DIVISIONAL COURT FILE NO.: 840/21 LANDLORD AND TENANT BOARD FILE NO.: TSL-07660-19
DATE: 20220713
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Stewart and Nishikawa JJ.
BETWEEN:
ZETA PSI ELDERS ASSOCIATION OF TORONTO Landlord (Respondent on Appeal)
– and –
SEAN KAVANAUGH Tenant (Appellant)
ORAL REASONS FOR JUDGMENT
Swinton J.
Date of Oral Reasons for Judgment: July 13, 2022
Date of Written Release: July 15, 2022