Court File and Parties

Court File No.: 3/16 Date: April 27, 2016 Superior Court of Justice - Ontario

Re: Kelly “Billy” Zolynsky, Appellant/Responding Party And: North Shore Farming Company Limited, Respondent/Moving Party

Before: Justice H. A. Rady

Counsel: James Morgan, for the Appellant/Responding Party Trevor Pellerine, for the Respondent/Moving Party

Heard: April 26, 2016

Endorsement

[1] The appellant has appealed an order of the Landlord and Tenant Board issued December 21, 2015 terminating her tenancy with the respondent and ordering her to pay arrears of rent among other things. The member released reasons for his decision the same day.

[2] The respondent seeks an order quashing the appeal for lack of jurisdiction. The parties are agreed that appeals from a decision of the Landlord and Tenant Board are only available for errors of law.

[3] The appellant submits that the member erred in law when he ruled that the tenancy agreement required rental payments of $1,000 monthly rather than $500. She submits that the Residential Tenancies Act, 2006, S.O. 2006, c. 17 does not permit rental increases without notice and any increases must be in compliance with the Act.

[4] The moving party submits that the member made no error in law but rather made findings of fact which are not reviewable on appeal for the reasons that follow.

[5] Section 210(1) of the Residential Tenancies Act provides as follows:

210. (1) 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.

[6] The distinction between questions of law and fact is discussed in Canada (Director of Investigation and Research) v. Southam Inc., [1996] S.C.J. 116:

35 Section 12(1) of the Competition Tribunal Act contemplates a tripartite classification of questions before the Tribunal into questions of law, questions of fact, and questions of mixed law and fact. Briefly stated, questions of law are questions about what the correct legal test is; 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. A simple example will illustrate these concepts. In the law of tort, the question what “negligence” means is a question of law. The question whether the defendant did this or that is a question of fact. And, once it has been decided that the applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact. I recognize, however, that the distinction between law on the one hand and mixed law and fact on the other is difficult. On occasion, what appears to be mixed law and fact turns out to be law, or vice versa.

[7] In Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53 the court cautioned:

[54] …courts should be cautious in identifying extricable questions of law in disputes over contractual interpretation. Given the statutory requirement to identify a question of law in a leave application pursuant to s. 31(2) of the AA, the applicant for leave and its counsel will seek to frame any alleged errors as questions of law. The legislature has sought to restrict such appeals, however, and courts must be careful to ensure that the proposed ground of appeal has been properly characterized. The warning expressed in Housen to exercise caution in attempting to extricate a question of law is relevant here:

Appellate courts must be cautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of “mixed law and fact”. Where the legal principle is not readily extricable, then the matter is one of “mixed law and fact” . . . . [para. 36]

[8] The Landlord and Tenant Board is a specialized tribunal and the legislature has clearly limited appeals from its decisions. Part of the reason is to ensure that the process is streamlined, timely and cost efficient.

[9] In my view, the appellant’s characterization of the member’s decision respecting the quantum of rent as a question of law is mistaken.

[10] The member referred to the appellant’s evidence on the quantum of rent and that of the landlord. He noted that their positions were diametrically opposed. He carefully reviewed the evidence of both parties and concluded that the landlord’s position was made out on a balance of probabilities. There is no discussion of “rental increases” because as he found, the agreed rental was $1000 per month. He rejected the appellant’s evidence that the rent was something less.

[11] I pause here to note that a transcript of the proceedings is not available but this is not fatal to this motion. The issue of unauthorized “rental increases” was simply not advanced during the hearing. It was an “either or situation”. The member’s reasons are cogent, and his findings were reasonable and based on the evidence. His findings were purely factual.

[12] For these reasons, the appeal is quashed. If the parties cannot agree, I will receive brief written submissions on costs from the moving party within two weeks of these reasons and the appellant one week thereafter.

“Justice H. A. Rady” Justice H. A. Rady Date: April 27, 2016