CITATION: Lokhouse Ltd. v. Ewing, 2024 ONSC 6789

DIVISIONAL COURT FILE NO.: DC—23-00000719-0000

DATE: 20241211

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: LOKHOUSE lTD. AND mARGARET fONG, APPELLANT

AND:

MARGARET EWING and Kevin SHEA, RESPONDENTS

BEFORE: SHORE J.

COUNSEL: Wanda Fong, a self-represented Appellant

Hugh DesBrisay, for the Respondents

Nicola Mulimia, for the Third Party, Landlord and Tenant Board

HEARD at Toronto: December 4, 2024

ENDORSEMENT

[1] The appellants, Wanda Fong and Lokhouse Ltd ("Appellants"), appeal from an order dated December 4, 2023, made by the Landlord and Tenant Board (the "LTB" or the "Board") requiring that the Appellants pay the respondent tenants, Margaret Ewing and Kevin Shea ("Respondents") the sum of $9,986.36 plus interest.

[2] The appeal is brought to this Court under subsection 210(1) of the Residential Tenancies Act, 2006, S.O. 2006, C 17 (the "RTA"), which grants a statutory right of appeal to an appellant from an order of the LTB restricted to questions of law. This Court has no jurisdiction under the appeal provisions in the RTA to weigh in on questions of fact or on questions of mixed fact and law (unless there is an extricable question of law presented).

[3] The Appellants are appealing findings of fact made by the LTB and therefore, as set out below, the appeal is dismissed with costs to the Respondents.

Analysis:

[4] The basis of the appellants' appeal, as set out in their factum, is that the LTB erred in:

(a) a finding that the Appellants acted in bad faith in serving the Respondents with an unlawful form N12 notice of the termination of the tenants' lease;

(b) a finding that the Appellant Wanda Fong had failed to occupy the tenants' rental unit within a reasonable time after the tenants vacated the unit; and

(c) a finding that the LTB had erred in calculating the compensation awarded to the Respondents.

[5] Rule 210 (1) provides:

Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law: Residential Tenancies Act, 2006, S.O. 2006, C 17 Sections 210(1).

The finding regarding acting in bad faith:

[6] The Appellants submit that the Board erred in finding that the Appellants acted in bad faith by terminating the tenancy under s.48 of the Act.

[7] The relevant provisions are as follows:

48 (1) A landlord may, by notice, terminate a tenancy if the landlord in good faith requires possession of the rental unit for the purpose of residential occupation for a period of at least one year by,

(a) the landlord;

(b) the landlord's spouse;

(c) a child or parent of the landlord or the landlord's spouse; or

(d) a person who provides or will provide care services to the landlord, the landlord's spouse, or a child or parent of the landlord or the landlord's spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located.

48 (5) This section does not authorize a landlord to give a notice of termination of a tenancy with respect to a rental unit unless,

(a) the rental unit is owned in whole or in part by an individual; and

(b) the landlord is an individual. 2017, c. 13, s. 7 (2).

57(1) The Board may make an order described in subsection (3) if, on application made by a former tenant of a rental unit, the Board determines that,

(a) the landlord gave notice of termination under section 48 in bad faith, the former tenant vacated the rental unit as a result of the notice or as a result of an application to or order made by the Board based on the notice, and no person referred to in clause 48(1)(a), (b), (c), or (d) occupied the rental unit within a reasonable time after the former tenant vacated the rental unit.

[8] The determination of whether the Landlord acted in bad faith by serving an unlawful notice of termination of tenancy, is a finding of fact and not subject to appeal. At paragraph 24 of the decision, the Board sets out their reasons and finds that the N12 was served in bad faith.

[9] The Appellants submit that the Board made an error in law in their interpretation of s. 48(5) of the RTA and finding that s.48(1) was not available to the Landlord. The Appellants submit the Board erred in law by not considering that Lokhouse Ltd. is a closely owned corporation and should not be subject to s.48(5).

[10] Section 48(5) is clear that s.48(1) is only available if the landlord is an individual. The building is owned by Lokhouse, a finding of fact open to and made by the Board, of which there is no dispute. A company, and not an individual is the landlord and therefore notice of termination under s.48 was not available for this rental unit. There was no error of law by the Board.

[11] The Board referred to the correct provisions of the Act in their decision. I find no error of law in the Board's interpretation and application of s.48 of the RTA. The Board properly identified the law and properly applied the correct sections of the law to the facts as found by the Board.

[12] The appeal cannot succeed on this ground.

The finding regarding the failure to occupy the unit:

[13] The Appellants submit that the Board erred in finding that Wanda Fong failed to occupy the rental unit within a reasonable time after the tenants vacated, and the Board further erred by reversing the onus of the burden of proof, in the Board's finding that Ms. Wong did not satisfy the Board that she moved into the unit.

[14] The finding with respect to whether Ms. Wong occupied the unit is a finding of fact and not subject to appeal.

[15] A reversal of the onus of proof would be considered an error of law. However, starting at paragraph 1 of the decision, the Board correctly sets out that the onus is on the Tenants to prove the elements on a balance of probabilities.

[16] The Board proceeds to set out the various elements that the Tenants had to prove on a balance of probabilities:

(a) the Landlord gave the Tenants an N12 notice of termination;

(b) they vacated the rental unit as a result;

(c) no person referred to in s.48(1) occupied the rental unit within a reasonable time; and

(d) the Landlord served the N12 notice of termination in bad faith.

[17] The first two elements were not in dispute. The Board then proceeded to find that the Tenants proved the two other elements on a balance of probability. There was no reversal of onus or err regarding the onus of the burden of proof.

[18] The appeal cannot succeed on this ground.

Error in Calculation:

[19] During the hearing, the Appellants conceded that the findings with respect to the calculation of compensation awarded to the Respondents were findings of fact and not subject to appeal.

[20] The submission that there were internal deficiencies in the reasoning, because the decision refers to the rental differential as $8,487.36 and $8,400 in different places, holds no weight with the Court. They were rounding when addressing the quantum in the decision, but the order reflects the correct amount.

[21] The appeal is dismissed.

Costs

[22] The parties were given an opportunity to make submissions with respect to costs.

[23] The LTB is not seeking costs and is asking that no costs be ordered against them. The Respondents are not seeking costs from the LTB.

[24] The Respondents were successful in having the appeal dismissed. The Respondents are seeking costs on a partial indemnity basis in the sum of $8,817.39 inclusive of HST. I find this to be reasonable in the circumstances.

Order:

[25] The appeal is dismissed.

[26] The Appellants shall pay the Respondents costs in the sum of $8,817.39 inclusive of HST.

Shore J.

Date: December 11, 2024