Court File and Parties

CITATION: Noffke v Deol, 2024 ONSC 5387

DIVISIONAL COURT FILE NO.: 078/24

DATE: 2024-10-07

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: DANIEL NOFFKE, Appellant/Tenant AND: PARAMPENEET DEOL, AMANDEEP DEOL and GURKIRPAL SANHA, Respondents/Landlords

BEFORE: Matheson J.

COUNSEL: Samuel Mason, for the Appellant Douglas H. Levitt and Spencer Toole, for the Respondents

HEARD at Toronto: October 1, 2024, by video-conference

Endorsement

[1] Daniel Noffke appeals from the order of the Landlord and Tenant Board (LTB) dated December 6, 2023 (the Merits Decision), and the related LTB review order dated January 4, 2024 (the Review Decision). The LTB granted the respondents’ application for the termination of his tenancy to permit demolition.

[2] The Residential Tenancies Act, 2006, S.O. 2006, c. 17 (RTA), limits this appeal to questions of law. The appellant submits that the LTB erred in law in granting the application, particularly with respect to the interpretation and application of “demolish” under s. 50 of the RTA, and with respect to a permit requirement under s. 73 of the RTA. The respondents submit that there was no error, and that, in any event, the appellant is really alleging errors of fact or mixed fact and law for which there is no right of appeal. I agree with the respondents – this appeal is based upon attempts to reargue the facts.

[3] The respondents purchased a three-story building, which had a few residential units as well as commercial space. They proceeded with plans for changes and the tenants were given notice of termination for the purpose of demolition. There was one residential unit on the main floor along with commercial space, two on the second floor including the appellant’s unit, and one on the third floor.

[4] The appellant’s unit is a bedroom. He also has shared use of a bathroom with the second tenant on that floor. His rent is $390 a month. The second tenant’s unit is a bedroom and kitchenette.

[5] The LTB heard the applications regarding the two units on the second floor together. The Member heard testimony from witnesses as well as receiving documentary evidence. In support of their application to terminate the tenancy, the respondents submitted plans for the building, approval by the Committee of Adjustments and their agreement with the City of Toronto. As set out in the application, for the second floor, the plan was to “demolish” both units, and build one large residential unit. At the LTB, both the appellant and the second tenant took the position that this was not a demolition – it was a renovation. If it is a renovation, the RTA provides tenants with a right to re-occupy their unit after the work is complete.

[6] In the reasons for the Merits Decision, the Member addressed the evidence at some length and found that the respondents in good faith intended to carry out a demolition. The Member found that proper notice had been given and compensation paid and that the respondents had obtained the necessary permits to do the work.

[7] On the issue raised by the appellant regarding revocation or demolition, the Member applied the definition of “demolition” from this Court’s decision in Two Clarendon Apartments Limited v. Sinclair, 2019 ONSC 3845, at para. 10, where the Court adopted the following definition from para. 6:

In a situation where the rental unit continues to exist, albeit in an extremely altered form, it is possible for the tenant to exercise a right of first refusal, because the rental unit is still there: the tenant may move back and continue the tenancy. In a situation where the rental unit is gone, it is not possible for the tenant to exercise a right of first refusal: the rental unit is no longer there and so the tenant cannot move back. The fact that the Act distinguishes renovations and demolitions by the tenant’s right of first refusal shows that the intention of these sections of the Act is to preserve tenancies where it is possible to do so.

[8] The appellant agrees that the above is the correct legal test.

[9] The Member found that the plan was to transform the entire second floor into one dwelling unit to such an extent that the appellant’s rental unit was no longer there. The Member found, under s. 73(1)(a) of the RTA, that the respondents’ intended, in good faith, to carry out the activity on which their notice of termination was based – a demolition.

[10] The Member then considered whether the eviction should be delayed or denied under s. 83 of the RTA. The Member accepted the appellant’s evidence about his age, his personal circumstances and limited means, and realistic expectations that it would be difficult to find anything comparable for what was an extremely low rent. Although the appellant had already had a lengthy period of time since he was given notice, the Member gave about two more months before the appellant would have to vacate. The extension was until January 31, 2024. The appeal to this Court then stayed the eviction until this decision.

[11] The LTB review request was dismissed. Among other grounds, the Member did not find a serious error by misapprehending the legal test under ss. 50(1)(a) or 73(1)(b)(i). The reviewing Member declined to interfere with the assessment of the evidence and findings of fact of the Member in the Merits Decision.

[12] This appeal is restricted to questions of law and the standard of review is correctness. The appellant submits that the LTB erred in law in applying the wrong test for a “demolition” under s. 50 of the RTA and for finding that the appellant’s unit would be demolished. The appellant further submits that the LTB failed to meet the requirement in s. 202 of the RTA to ascertain the real substance of the transaction, found demolition without evidence or by ignoring evidence, and erred regarding the necessary permits under s. 73(1) of the RTA. The respondents submit that there was no error of law or principle and that the appellant is attempting to reargue the facts.

[13] The appellant submits that the reasons for decision are inadequate. I disagree. The reasons for decision read in context and as a whole permit effective appellate review.

[14] The main issue on this appeal is whether there was an error of law in concluding that the respondents’ plan amounted to a demolition rather than a renovation. If it is a renovation, the appellant has a right of first refusal to occupy the unit after the work is completed, as set out in s. 53 of the RTA.

[15] The appellant acknowledges that the LTB expressly quoted the correct test for a “demolition” from Two Clarendon in the Merits Decision. The appellant submits that the Member erred in the application of that test to the evidence.

[16] The appellant begins with the nature of the legislation. I agree that the RTA is remedial legislation that is designed to redress the imbalance of power between landlords and tenants. Further, it is important to properly distinguish between a demolition and a renovation because a renovation offers different protections to a tenant. Both have significant requirements for notice and compensation but only a renovation provides the right to re-occupy the unit afterward.

[17] The appellant submits that the planned new single premises, which is described as having one bedroom and a den, is really a two-bedroom apartment. The appellant submits that each of the two tenants on the second floor have the right to re-occupy their unit. The appellant acknowledges, as set out in Two Clarendon, that it is the right to re-occupy the appellant’s unit, not any unit. For the appellant that would mean one bedroom (or the den). For the other tenant that would mean the bedroom (or the den) and possibly the kitchen. The appellant submits that it is arbitrary to distinguish the newly planned premises from two rental units with a shared common bathroom.

[18] There are a number of difficulties with this submission. First, as noted at the LTB hearing, the Building Code requires that each unit have its own dedicated staircase to the street. The new premises have only one. Also under the Building Code, the respondents submit that the den would not meet the legal requirements for a bedroom because there is no egress window. The appellant objects to the submission about the window because it was not raised at the LTB, and it would be unfair to consider it. I will disregard it. Next, the concept of re-occupying the new premises may give rise to issues involving a second tenant. The other tenant who objected at the LTB is not seeking to overturn the Merits Decision and re-occupy. However, this does not mean that the appellant would have the right to occupy what he says is someone else’s unit. The appellant’s position is that someone could move in and they could be “tenants in common” in the new premises but the appellant does not address how that would work. In any event, most significantly, the appellant is really asking this Court to permit a challenge to findings of fact of the LTB, for which there is no right of appeal.

[19] The appellant makes submissions about the details on the permit, the plans (which do refer to demolition), the Committee of Adjustment documentation and the testimony of the witnesses. These submissions seek to re-argue the facts, and do not give rise to an issue of law or principle. The appellant submits that a plan will constitute a demolition only where the physical premises are destroyed such that the appellant’s unit no longer exists. The appellant then re-characterizes the facts to suggest that the planned changes only amount to a renovation in this case. However, the Member made a finding on the evidence that the plan was to transform the entire floor into one dwelling unit to such an extent that the rental unit was no longer there. This finding of fact does not give rise to an appealable error.

[20] The Member acknowledged that a renovation included an extremely altered form. As set out in the Merits Decision, the Member found that the plan so altered the second floor that it could not be said that the appellant’s rental unit continues to exist, even in extremely altered form. There was no error in law or principle in making this finding. Nor has the appellant shown that the Member either found a demolition without evidence or ignored relevant evidence, giving rise to an issue of law.

[21] The appellant relies on s. 202 of the RTA, which requires that the LTB ascertain the “real substance” of the transaction. This is another submission that is based upon the disagreement with the findings of fact and of mixed fact and law regarding demolition or renovation. The appellant has also made submissions about poor behaviour by landlords generally. However, in this case, there is an express finding that the respondents intended a demolition in good faith.

[22] On the subject of permits, s. 73(1)b)(i) of the RTA requires that the applicant obtain “all necessary permits or other authority that may be required to carry out the activity on which the notice of termination was based.” The appellant submits that the LTB erred regarding the necessary permits and relies on a potential inconsistency in the reasons for decision. In the reasons for decision, the Member expressly acknowledged that the appellant contested that the plans and permits were for demolition, submitting that they were for renovation. Later in the reasons, the Member said that it was undisputed that the respondents obtained the required permits to carry out the plans, which were for a demolition. Reading the reasons for decision as a whole and in context, I do not conclude that the Member erred in law. The appellant’s objection was expressly noted and was put forward in the context of the overarching issue of whether the application was actually for a demolition or a renovation. As set out elsewhere in the reasons for decision, the Member was satisfied that the respondents had “obtained the necessary permits for this work.”

[23] This appeal is therefore dismissed. The appellant shall pay costs in the agreed-upon sum of $2,500, all inclusive, to the respondents. In view of the appellant’s personal circumstances, the eviction may not be enforced until December 31, 2024, which is almost a year later than the LTB’s eviction order.

Matheson J.

Date: October 7, 2024