CITATION: Homestead Land Holdings Limited v. Gencay, 2023 ONSC 4378
DIVISIONAL COURT FILE NO.: 183/23
DATE: 20230726
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
HOMESTEAD LAND HOLDINGS LIMITED
Kristin A. Ley, for the Landlord (Respondent)
Landlord (Respondent)
– and –
UGUR GENCAY
Self-represented Tenant (Appellant)
Tenant (Appellant)
HEARD at Toronto: July 26, 2023
LEIPER J. (Orally)
[1] The Respondent, Homestead Land Holdings Limited (the “Landlord”) brought a motion to quash an appeal pursuant to subsection 134(3) of the Courts of Justice Act. The decisions that are the subject of the appeal were made by the Landlord and Tenant Board (the “Board”) ordering the termination of a residential tenancy between the Landlord and the Appellant Mr. Ugur Gencay.
[2] Mr. Gencay has been a resident in an apartment building owned by the Landlord since 2017. The Landlord brought an application to terminate the tenancy when his rent ceased being paid.
[3] On February 6, 2023, the Board issued an order terminating Mr. Gencay’s tenancy on February 17, 2023, unless he voided the order by paying the arrears of rent in the amount of $16,603.14 on or before February 17, 2023.
[4] Mr. Gencay filed a request to review the order. The review was heard by videoconference on March 13, 2023. By order dated March 20, 2023, the Board denied Mr. Gencay’s review and confirmed the order of February 6, 2023.
[5] On March 21, Mr. Gencay filed an appeal which stayed the order of eviction. At a case conference in this court, Mr. Gencay acknowledged that the lawful rent for this unit is $1,656.30 and agreed that he would pay $1,656.30 going forward. The Landlord submits that the last rental payment, including pending this appeal, was made on July 5, 2022.
[6] Mr. Gencay, as he did before the Board, insisted that he has paid his rent and denies owing any arrears. His material consists of several copies of electronic e-transfer/bill payment bank records, which were the subject of an adverse finding of fact at his Review Hearing.
[7] The Landlord submits that Mr. Gencay’s appeal raises no questions of law and seeks only to challenge the findings of fact made by the Board. The Residential Tenancies Act only permits an appeal from a question of law. In circumstances where an appeal does not raise an issue of law, it is liable to be found to be without merit and to be dismissed on that basis on a motion to quash: see Residential Tenancies Act, 2006, S.O. 2006, c. 17, ss. 210(1); Solomon v. Levy, 2015 ONSC 2556, paras 31-33: Lafontaine v. Grant, 2019 ONCA 552, paras 6-7: Plunkett v. Toronto Community Housing Corporation, 2013 ONSC 2001 at para. 2.
[8] In this case, Mr. Gencay submits that at the Review Hearing, he was being accused of committing fraud by producing documents that were not accepted. I have reviewed the reasons on review. The Landlord submitted that the records Mr. Gencay produced at the hearing “appeared to be fraudulent” based on discrepancies in the fonts and background. The Board found that Mr. Gencay knew that he would have to produce corroborative bank statements, offered him a chance to do so and when he did not, found that he had not established that he had paid rent, as he had asserted. However, the Board did not make any findings that Mr. Gencay had committed fraud or had breached the Criminal Code. That is not the Board’s function and as Mr. Gencay noted, he is presumed innocent until proven guilty of a criminal offence.
[9] Mr. Gencay’s notice of appeal also challenges the finding of the Board at first instance that he was properly served with the application to terminate his tenancy.
[10] I find that Mr. Gencay’s appeal has no merit. It does not raise any question of law. The Board was concerned with questions of fact, that is, whether Mr. Gencay received proper service of the Landlord’s application and whether Mr. Gencay had paid his rent. It heard evidence from the Landlord’s representative and from Mr. Gencay. The Board issued reasons for its findings of fact, and Mr. Gencay had a second opportunity at his review to corroborate his claim that his rent was up to date.
[11] I grant the motion to quash. Mr. Gencay will have until August 16, 2023, before the order takes effect to allow him to find new housing.
[12] Costs are ordered to be paid by Mr. Gencay to the Landlord in the amount of $3,000, to be paid in three instalments on the first of each month beginning on September 1, 2023, until the costs are paid in full.
___________________________ Leiper J.
Date of Oral Reasons for Judgment: July 26, 2023
Date of Written Release: July 27, 2023
CITATION: Homestead Land Holdings Limited v. Gencay, 2023 ONSC 4378
DIVISIONAL COURT FILE NO.: 183/23
DATE: 20230726
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
HOMESTEAD LAND HOLDINGS LIMITED
Landlord (Respondent)
– and –
UGUR GENCAY
Tenant (Appellant)
ORAL REASONS FOR JUDGMENT
LEIPER J.
Date of Oral Reasons for Judgment: July 26, 2023
Date of Written Release: July 27, 2023