CITATION: Moneo et al. v. P&R Developments, 2023 ONSC 1526 DIVISIONAL COURT FILE NO.: DC-22-438-00 DATE: 2023-03-07

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Lederer, McCarthy, and Matheson JJ.

BETWEEN:

JEFFERSON MONEO; FABIOLA CARAZA DUHNE Appellants

– and –

P&R DEVELOPMENTS Respondent

Counsel: D. Jafari for the Appellants Tenants T. Duggan for the Respondent Landlord

HEARD at Toronto: February 6, 2023 (via Zoom)

REASONS FOR DECISION

McCarthy J.

The Nature of the Appeal

[1] The Tenants appeal from the review order of Renee Lang, Member of the Ontario Landlord and Tenant Board (“the Board”) dated July 13, 2022 (“the review order”) along with the originating order of E. Patrick Shea, Member of the Board dated May 11, 2022 (“the eviction order”).

[2] The two orders served to terminate the tenancy enjoyed by the Tenants at a residential property located at the upper unit of 2165 Gerrard Street East, Toronto (“the rental unit”). The Respondent P&R Developments (“the Landlord”) had served a Notice to End Tenancy (“the N13”) dated December 11, 2019, stating that the Landlord intended to demolish the rental unit. The N13 requested that the Tenants vacate the rental unit by April 30, 2020. The Landlord then brought an L2 application before the Board for an order that the tenancy be terminated, and for the Tenants to be evicted.

[3] In the eviction order, the Board terminated the tenancy after finding:

(a) that the Landlord had given proper notice to terminate on the basis that the rental unit could be demolished; and

(b) that the Landlord had taken all reasonable steps to obtain the necessary permits and authorizations.

[4] In the review order, the member denied the Tenants’ request to review the eviction order.

[5] The eviction order was automatically stayed by the launching of the present appeal.

[6] For the reasons which follow, we can find no error in law on the part of the Board. The appeal must be dismissed.

The Appellants’ Position

[7] The Appellants contend that the member’s finding, that the Landlord took all reasonable steps to obtain all necessary permits or other authorizations, is so unsupported by the evidence that it gives rise to an error in law.

[8] The Appellants ask this court to set aside the Board orders and dismiss the Landlord’s application; in the alternative, they ask that the Landlord’s application be returned to the Board for a new hearing.

The Respondent’s Position

[9] The Landlord contends that it met its burden under the legislation to demonstrate that it had taken all reasonable steps to obtain a demolition permit and that obtaining the demolition permit was not possible without vacant possession of the unit. The Board was correct to determine that the tenancy should be terminated to afford that vacant possession be provided to the Landlord.

[10] The Landlord asks that the court dismiss the appeal, which would result in the lifting of the stay of the eviction order.

Jurisdiction and Standard of Review

[11] This court has jurisdiction to hear the appeal on questions of law only pursuant to s. 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the “RTA”).

[12] This court does not have jurisdiction to hear the appeal from an order of the Board on a question of fact or mixed fact and law: see Lerose v. Princess Apartments, 2022 ONSC 7 (Div. Ct.) at para. 29.

[13] The parties agree that the standard of review on questions of law is that of correctness.

The RTA

[14] Subsection 50(1) of the RTA provides that a landlord may give notice of termination of a tenancy if the landlord requires possession of the rental unit in order to:

(a) demolish it;

(b) convert it to use for a purpose other than residential premises; or

(c) do repairs or renovations to it that are so extensive that they require a building permit and vacant possession of the rental unit.

[15] Subsection 73(1) of the RTA provides that the Board shall not make an order terminating a tenancy and evicting a tenant on a notice given pursuant to section 50 unless it is satisfied, among other things, that:

(b) the landlord has,

(i) obtained all necessary permits or other authority that may be required to carry out the activity on which the notice of termination was based, or

(ii) has taken all reasonable steps to obtain all necessary permits or other authority that may be required to carry out the activity on which the notice of termination was based, if it is not possible to obtain the permits or other authority until the rental unit is vacant.

[16] As they did before the Board, the Appellants concede:

(a) that the Landlord had complied with the technical requirements of the RTA for a proper notice of termination;

(b) that the Landlord had acted in good faith in serving the N13; and

(c) that the Landlord had a genuine intention to demolish the rental unit.

[17] For its part, the Landlord has always conceded that it has yet to obtain the required permits and authorizations to demolish the rental unit and surrounding residential complex.

Analysis

Question of fact or mixed fact and law

[18] In my view, this appeal can be disposed of on the grounds that the member’s findings at the eviction hearing (that the Landlord required vacant possession of the rental unit to obtain the demolition permit and that the Landlord had taken all reasonable steps to obtain the demolition permit) were findings of fact or of mixed fact and law.

[19] As stated by the Supreme Court in Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 35:

Briefly stated, questions of law are questions about what the correct legal test is; the questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.

[20] The fact that the phrase “reasonable steps” forms part of a statutory provision does not render the question a legal one. The term “reasonable steps” invites, indeed demands, a factual inquiry and the application of those facts to the legal test. There is no extricable legal principle here.

Question of law

[21] Even if the decision in question contains an extricable question of law, I find that the Board was correct in reaching the decision it did. The Board considered only the demolition permit because the “activity on which the notice of termination was based” was demolition of the rental unit. The necessary permit for the purpose of s. 73(1) was the demolition permit and not the building permit. The Board was only required to be satisfied that the Landlord had taken all reasonable steps to obtain that demolition permit.

[22] In arriving at that conclusion, the Board correctly found that vacant possession was required for the Landlord to undertake work contained in the notice. The Board had evidence before it upon which to base such a finding, specifically that of Debbie MacDonald of the project/construction management firm retained by the Landlord for the demolition and redevelopment of the residential complex.

[23] Ms. MacDonald testified that the Landlord required a designated substance survey (“DSS”) in order to complete its application for the demolition permit. The DSS could not be obtained until the complex and unit were vacant; and the application itself required that the Landlord confirm that the complex was vacant on the application date. The Landlord had retained an engineering firm to carry out the DSS; that company was waiting until the complex was vacant to carry out the DSS.

[24] The Landlord was entitled to complete an application for a demolition permit without commencing an application for a building permit. It followed that there were no steps to analyze in respect of the Landlord’s obtaining of the building permit because no steps were required to have been taken.

[25] The Board’s interpretation of a section within its enabling legislation was entirely correct. Where, as here, the activity on which the notice of termination was based is demolition of the rental unit, the landlord’s plans after the demolition of the unit has been completed are irrelevant for the purposes of s. 73(1). Such an interpretation is consistent with the decision of this court in Corbett v. Lanterra Developments The Britt Ltd., 2014 ONSC 3297 (Div. Ct.) at paras. 13-14.

[26] There was no error in law on the part of the Board.

Disposition

[27] For the foregoing reasons, the appeal is dismissed. The stay of the appealed orders of the Board is lifted. The Tenants shall have until April 30, 2023, to vacate the rental unit.

[28] The Respondent is entitled to costs of the appeal fixed and payable in the amount of $4,000. Those costs are payable on or before April 30, 2023.

McCarthy J.

I agree _______________________________ Lederer J.

I agree _______________________________ Matheson J.

Released: March 7, 2023