COURT FILE NO.: CV-18-0027-00

DATE: 2018-12-19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

THE CORPORATION OF THE CITY OF KENORA

Applicant

• and -

EIKRE HOLDINGS LTD., DARRYL EIKRE AND PHYLLIS EIKRE

Respondents

• and -

NORTHWEST COMMUNITY LEGAL CLINIC

Intervener

A. McKitrick, for the Applicant

B. Richardt, for the Respondents

K. Warkentin, for the Intervener

HEARD: November 28, 2018, at Kenora, Ontario

Mr. Justice D.C. Shaw

Decision On Application

Overview

[1] The Corporation of the City of Kenora (the “City”) brings an application to close an illegal boarding house located on the second and third floors of 117 Main Street, Kenora, known as Lila’s Block (the “Property”).

[2] The Property is owned by the corporate respondent, Eikre Holdings Ltd. The individual respondents, Darryl Eikre and Phyllis Eikre, are the officers, directors and sole shareholders of Eikre holdings Ltd.

[3] The Northwest Community Legal Clinic (the “Clinic”) was granted leave to intervene in this application as a friend of the court.

[4] The City filed extensive affidavit material on the application to the effect that the Property is a public nuisance, dangerous, a risk to the neighbourhood, unsanitary, in disrepair and the centre of criminal activity in Kenora.

[5] The City requests declaratory relief under s. 97 of the Courts of Justice Act, R.S.O. 1990, c.C41, injunctive relief under s. 440 of the Municipal Act, 2001, S.O. 2001, c. 25 and a closure order under s. 447.1 of the Municipal Act, 2001.

[6] The respondents do not oppose the City’s application. The respondents do not take issue with the substance of the City’s factual allegations.

[7] The Property is located in the heart of downtown Kenora, in the General Commercial Zone. There is public access to the property from Main Street South at the front and Hennepin Lane at the rear, both of which are municipal highways. The application relates to the use of the second and third floors of the Property and the hallways, stairs and entrance ways that are used to access them. It does not relate to that part of the main floor which is a retail clothing store, owned by persons other than the respondents and which is a permitted use under the City of Kenora’s Zoning By-law.

[8] When the application was commenced, there were 14 tenants living on the second and third floors of 117 Main Street, plus an undetermined number of other individuals who were living and hanging out in the Property.

[9] Pursuant to an order of this court dated May 24, 2018, the tenants were given notice of the proceedings and informed how to participate and obtain legal advice from the Clinic. None of the tenants participated in the application. They are not parties.

[10] Although the Clinic takes no position on the facts, it intervened as a friend of the court for the stated purpose of providing a voice to the interests of the tenants. The Clinic submits that the essence of the application is that the subject matter falls under the Residential Tenancies Act, 2006, S.O. 2006, making the Landlord and Tenant Board (the “Board”) the appropriate venue for the resolution of the issue. The Clinic submits that the Residential Tenancies Act, 2006, ousts the jurisdiction of the court to issue the orders requested in the application.

[11] The Clinic submits that the Board has exclusive jurisdiction to terminate a tenancy. The Clinic submits that there is an apparent conflict between the Court’s jurisdiction to issue a closure order and the exclusive jurisdiction of the Board to terminate a tenancy.

Background

[12] The evidence on the application, which is uncontested, is found in the affidavits of the City Clerk, the City Planner, the Fire Chief, the Chief Administrative Officer, eight police officers with the Kenora Detachment of the Ontario Provincial Police and managers of two businesses adjacent to the Property.

[13] There are 14 units on the second and third floors of the Property which constitute separate residential units. One unit contains a kitchen. None of the other units have a kitchen or access to a kitchen. None of the units contain a bathroom. There is a communal bathroom on each of the second and third floors at the end of the hallways, although one of the bathrooms may not be functional.

[14] All of the units are “rooming units” as defined in the City’s Zoning By-law (By-law No. 101-2015) because they are not self-contained and tenants require access to other parts of the building for showers and bathtub facilities, and toilets.

[15] Many persons who are not tenants hang out at the Property, including some at-risk youth, with some sleeping in the hallways or in the residential units on a transient basis. One person has been found sleeping in a closet.

[16] The Zoning By-law provides that the Property is situated in the General Commercial Zone. A boarding house is not listed as a permitted use in the General Commercial Zone of the Zoning By-law and is therefore prohibited.

[17] The City has engaged in significant work to revitalize the block of Main Street on which the Property is located. The City has successfully provided incentives, such as grants, for downtown property owners to improve their buildings. The City has provided grants of approximately $1,000,000.00 which have leveraged private investment of approximately $4,630,000.00 in the last several years, including $1,630,000.00 in 2017 in conjunction with the City’s Community Improvement Plan.

[18] It is the evidence of the police that over the last four to five years, the Property has become the central area for criminal activity in Kenora including drug transactions, drug use, aggravated assaults, assaults, weapons offences, property crimes, robberies, public intoxication and vandalism.

[19] Within the past five years there have been approximately 850 calls to the Property for police service responding to criminal activity.

[20] The Property is frequented by at-risk youth, some as young as 14 years old, to obtain and use drugs. At risk youths have been found unconscious in the building.

[21] Since 2014, there have been 19 calls to the Property for emergency fire department service.

[22] The fire escape is frequently used as a means of entering and leaving the building, to urinate and for drug use and other drug activity.

[23] Fire Code inspections are impeded due to the large number of used needles jammed into the holes in the walls and elsewhere.

[24] Because the Property is constructed of old, dry, combustible material, the Fire Chief is of the opinion that, if a large fire were to occur at the Property, the potential for fire spreading to adjoining properties and perhaps the entire city block is great, with loss of life.

[25] The living conditions at the Property are described by the Fire Chief as deplorable and completely unfit for human habitat.

[26] The evidence includes descriptions of rooms that are overcrowded and unsanitary. There are infestations of bed bugs. The building is filthy from mould, dirt, garbage, blood, urine and feces, which are found on the floors, walls, stairs, stairwells, doors and windows. The bathroom sinks, tubs and toilets are often inoperable as a result of damage or garbage and needles thrown into them.

[27] Emergency personnel - police, paramedics and firefighters - are put at risk by unsanitary conditions, uncapped needles which are often hidden, criminal activity and multiple persons occupying the Property intoxicated by drugs and alcohol.

[28] Persons who frequent the Property have detrimentally affected the use and enjoyment of property in the vicinity by way of:

• Assaults
• Aggressive panhandling
• Threatening, harassing and intimidation
• Trespass and litter, including disposing of thousands of used needles
• Noise
• Sleeping in the vestibule of an adjoining business
• Damage to property
• Graffiti
• Garbage and debris

[29] The Property is used in a way that results in serious and reoccurring contraventions of the City’s Property Standards and Yard Maintenance By-laws.

[30] As recently as September 28, 2018, a person staying at the Property died of a suspected fentanyl overdose, another tenant was rushed to hospital in critical condition from a suspected drug overdose, and the chimney at the Property was pushed off its roof by criminals, leaving a gaping hole into the business below, with persons seen coming from the Property, climbing through the hole and stealing merchandise from the business.

[31] The respondents acknowledge that the Property is out of their control, notwithstanding multiple failed attempts on their part to deal with issues.

Discussion

[32] In Croplife Canada v. Toronto (City) (2005), 2005 15709 (ON CA), 75 O.R. (3d) 357 (C.A.), Feldman J. held that a broad and purposive approach should be used to interpret the powers granted to municipalities under the Municipal Act, 2001. At para. 37, Feldman J.A. stated:

… the jurisprudence from the Supreme Court is clear that municipal powers, including general welfare powers, are to be interpreted broadly and generously within their context and statutory limits, to achieve the legitimate interests of the municipality and its inhabitants.

[33] Section 447.1 of the Municipal Act, 2001 authorizes the court, on application of a municipality, to order that all or part of a premises be closed to any use for a period not exceeding two years if, on the balance of probabilities, the court is satisfied that activities on or in the premises constitute a public nuisance which has a detrimental impact on the use and enjoyment of property in the vicinity of the premises. Section 447.1(1)(b) enumerates categories of public nuisance, including, but not limited to:

• Trespass to property
• Interference with the use of highways and other public areas
• An increase in garbage, noise or traffic
• Activities that have significant impact on property values
• The presence of graffiti

[34] As noted by Bryant J. in Newmarket (Town) v. Halton Recycling Ltd., 2006 CarswellOnt 5920 (S.C.J.), at para. 85, s. 447.1 should not be restrictively interpreted to limit relief to only the categories of public nuisance enumerated in the section.

[35] Bryant J., at para. 61, references Ryan v. Victoria (City), 1999 706 (SCC), [1999] 1 S.C.R. 201 (S.C.C.), where the Supreme Court of Canada defined a public nuisance and the factors that may be considered in determining whether a particular activity constitutes a public nuisance. The Supreme Court of Canada stated, at para. 52,

The doctrine of public nuisance appears as a poorly understood area of the law. “A public nuisance has been defined as any activity which unreasonably interferes with the public’s interest in questions of health, safety, morality, comfort or convenience”… Essentially, “[t]he conduct complained of must amount to ... an attack upon the rights of the public generally to live their lives unaffected by inconvenience, discomfort or other forms of interference.” (Citation omitted)

[36] The uncontested evidence put forward by the City on this application satisfies me, well beyond a balance of probabilities, that activities in and about the Property constitute a public nuisance within the enumerated categories listed in s. 447.1(1)(b) and within the wider definition set out in Croplife.

[37] I am also satisfied that the Property is being used in a way which results in violation of the City’s Zoning By-law, in contravention of the City’s Property Standards By-law and in contravention of the City’s Yard Maintenance By-law.

[38] Section 440 of the Municipal Act authorizes the court, on application of the municipality, to restrain the contravention of any by-law of the municipality. This is in addition to any other remedy and to any penalty imposed by the by-law.

[39] In Newcastle Recycling Ltd. v. Clarington (Municipality), 2005 CarswellOnt 7237 (C.A.), the municipality applied for an injunction to enforce a by-law. The Court of Appeal, at para. 32, held that it was not necessary for the municipality to lead compelling evidence that the injunction was warranted.

Where a municipal authority seeks an injunction to enforce a by-law which it establishes is being breached, the courts will refuse the application only in exceptional circumstances.

[40] The traditional test for an injunction does not apply in the case of an application for a statutory injunction under s. 440 of the Municipal Act, 2001. The British Columbia Court of Appeal in Maple Ridge (District) v. Thornhill Aggregates Ltd., 1998 CarswellBC 1571 (C.A.) stated, at para. 7:

The source for the injunction in the case under appeal is statutory, and not equitable. Factors that might be considered by a court in an application for an equitable injunction would be of limited, if any, application to the grant of a statutorily based injunction.

[41] This statement of the British Columbia Court of Appeal was referred to in Neighbourhoods of Winfields Ltd. Partnership v. Death 2008 CarswellOnt 5025 (S.C.J.) by Howden J., aff’d 2009, CarswellOnt 277 (C.A.); leave to appeal to S.C.C. refused 2009 CarswellOnt 7244 (S.C.C.).

[42] In light of the fact that the grounds supporting a closure order under s. 447.1 of the Municipal Act, 2001, and an injunction under s. 440 of the Municipal Act, 2001 have been well established by the City, the issue that remains is whether the Residential Tenancies Act ousts the jurisdiction of the court to make a closure order and grant a statutory injunction.

[43] The Clinic relies on Fraser v. Beach, 2005 14309 (ON CA), [2005] O.J. No. 1722 (C.A.) in its submission that the Residential Tenancies Act prevents this court from making a closure order to relieve against a public nuisance and from granting an injunction to prevent a breach of the City’s by-laws.

[44] The facts in Fraser are set out in the headnotes to the decision:

The plaintiffs were a group of neighbours who lived near an illegal rooming house in Ottawa. They sued the landlords seeking an injunction restraining them from operating the rooming house. The landlords, who had been convicted of operating a rooming house without a licence, consented to an order granting an injunction. The injunction order provided, however, that the neighbours would take no steps to enforce it pending notice to be given to the tenants or to allow for the orderly sale of the property. The landlords applied to the Ontario Rental Housing Tribunal for an order terminating the appellants’ tenancies but, on October 27, 2003, the Tribunal refused the landlords’ application. Faced with the continued operation of the rooming house, the neighbours returned to the Superior Court on notice to the tenants and obtained an order dated December 16, 2003 requiring the tenants to vacate the rooming house on or before January 15, 2004. The tenants appealed on the basis that the court lacked jurisdiction to make the order.

[45] The sole issue on the appeal, as framed by the Court of Appeal, was whether the Superior Court had jurisdiction to order the eviction of the tenants or whether the Ontario Rental House Tribunal (now the Landlord and Tenant Board) had exclusive jurisdiction to do so.

[46] The Court of Appeal found that the Tenant Protection Act (now the Residential Tenancies Act, 2006) applied to the rooming house and the relationship between its inhabitants and the landlord, despite the fact that it operated contrary to the city’s by-laws.

[47] At para. 14 of Fraser, the Court of Appeal held that the following provisions of the Tenant Protection Act were of central importance:

Section 39(1) provides “A tenancy may be terminated only in accordance with this Act.” These words could not be more unequivocal. Moreover, s. 41(b) provides: “A landlord shall not recover possession of a rental unit subject to a tenancy unless ... an order of the Tribunal evicting the tenant has authorized the possession." Section 157(2) provides “The Tribunal has exclusive jurisdiction to determine all applications under this Act and with respect to all matters in which jurisdiction is conferred on it by this Act.” Finally s. 2(1) provides that the Tenant Protection Act applies with respect to rental units in residential complexes “despite any other Act” and s. 2(4) specifies that if a provision of the Tenant Protection Act conflicts with a provision of another Act (other than the Human Rights Code, R.S.O 1990, c. H.19) the provision of the Tenant Protection Act prevails.

[48] These provisions of the Tenant Protection Act were continued in the current Residential Tenancies Act.

[49] In writing for the Court of Appeal, Juriansz J.A stated, at para. 15:

I am satisfied that the combined effect of these provisions is to oust the jurisdiction of the Superior Court to make an order requiring the tenants to vacate the premises. The statute clearly provides that only the Tribunal may make an order terminating a tenancy and evicting a tenant.

[50] The Clinic submits that in the instant case the provisions of s. 447.1 of Municipal Act, 2001 that authorize the Superior Court of Justice to make an order requiring that all or part of a premise be closed to any use for a period not exceeding two years would result in the effective termination of the tenancies and would frustrate the purposes of the Residential Tenancies Act in carrying out exclusive jurisdiction for the Board to terminate tenancies.

[51] I do not agree with this submission

[52] The purposes of the Residential Tenancies Act are expressly set out in s. 1 of the Act:

The purposes of this Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes.

[53] Section 2 of the Municipal Act, 2001 describe the purpose of that Act:

Municipalities are created by the Province of Ontario to be responsible and accountable governments with respect to matters within their jurisdiction and each municipality is given powers and duties under this Act and many other Acts for the purpose of providing good government with respect to those matters.

[54] The Residential Tenancies Act concerns itself with only two sets of actors – residential tenants and residential landlords – and the relationship and disputes between those two sets of actors.

[55] The Municipal Act, 2001, on the other hand, focuses on the citizens, at large, of a municipality. As a responsible, accountable government, the City has a duty to promote and protect the public interests through powers given to it under the Municipal Act, 2001 in matters such as zoning, fire codes, policing, property standards, unsafe buildings and public nuisances.

[56] In Fraser, the application was brought by private citizens, neighbours of the illegal rooming house in Ottawa, who submitted that a Superior Court had jurisdiction, at common law, to terminate a tenancy and evict a tenant for creating a nuisance. The City of Ottawa did not participate in the proceedings. The decision in Fraser did not deal with the statutory jurisdiction of the City of Ottawa, under s. 447.1 of the Municipal Act, 2001, to make a closure order where activities or circumstances in or about the premises constituted a public nuisance.

[57] In the instant case, the City, in seeking to exercise its jurisdiction under s. 447.1 of the Municipal Act, 2001, does not request an order terminating the tenancies of the Property and allowing the landlord to recover possession. Rather, the City requests an order that the building be closed, directed not at the landlord/tenant relationship but in furtherance of the City’s duty to promote and protect the public interest.

[58] The purpose of s. 447.1 was made clear by the Minister responsible for introducing the proposed Municipal Act, 2001 to the Legislature, as per Hansard:

The proposed new act [Municipal Act, 2001] also includes measures to give municipalities more authority to make their communities safer. It will respond to municipal requests by enhancing municipal powers to deal with crack houses … and other problem properties as public nuisances by allowing municipalities to … ask the courts to close down those problem properties.

[59] The problem properties to which reference is made would necessarily include properties with residential tenants.

[60] Giving s. 447.1 the broad and purposive approach that must be used to interpret the powers that have been granted to the City under s. 447.1 of the Municipal Act, 2001, I am satisfied that a closure order should be granted with respect to the Property and that the closure order differs from an order terminating a tenancy within the meaning of the Residential Tenancies Act.

[61] It is instructive to look at a number of statutory remedies, in addition to s. 447.1 of the Municipal Act, 2001, that the Province has given to municipalities to deal with premises where the protection of the public interest is at stake,

• Section 15.9(6) of the Building Code Act, 1992, S.O. 1992, c. 23 provides that where the order of a building inspector is not complied with within the time specified in it, the chief building official may by order prohibit the use or occupancy of a building and may also cause the building to be demolished.
• Section 13(4) of the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 provides that a medical officer of health or a public health inspector may make an order requiring the vacating of the premises and the order may be directed to an owner or occupier of any premise.
• Section 21(2)(b) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c.4 provides that an inspector, with the approval of the Fire Marshall, may order that premises be closed immediately and persons on the premises be removed and direct that the premises be vacated until corrective actions that have been ordered are taken.
• The Expropriations Act, R.S.O. 1990, c. E. 26 permits premises in which a lessee has an interest to be expropriated and the lease to be frustrated.
• Pursuant to s. 379(7) of the Municipal Act, 2001, on a sale of premises for arrears of taxes, a tax deed vests in the purchaser an estate in fee simple. In Lewis v. Mani (1995), 25 IO.R. (3d) 319 (Gen. Div.), Corbett J. held that the Landlord and Tenant Act had no application because the leasehold interest had been extinguished by what is now s. 379(7) of the Municipal Act, 2001.
• Section 440 of the Municipal Act, 2001 permits an injunction to restrain the contravention of a municipal by-law.

[62] None of the provisions of these Acts, which give municipalities the right to close, demolish, expropriate, enjoin and sell premises, are directed at the termination of tenancies, notwithstanding that the premises in question may be occupied by tenants who will obviously be affected by orders made and steps taken under the Acts.

[63] If the legislature intended to exempt residential tenancies form the provisions of s. 447.1 of the Municipal Act, and of the Building Code Act, the Health Protection and Promotion Act, the Fire Protection and Prevention Act, the tax sale provisions of the Municipal Act, 2001, and s. 440 of the Municipal Act, 2001, it could have explicitly done so.

[64] The essential character of all these provisions is the promotion and protection of the public interest, including the interests of tenants of the premises, as distinguished from the purposes of the Residential Tenancies Act which is to regulate the relationships between landlords and tenants.

[65] The public’s interest in questions of “health, safety, morality, comfort or convenience” are not within the purposes of the Residential Tenancies Act nor the jurisdiction of the Board.

[66] In Neighbourhoods of Winfields, Howden J. of the Superior Court granted an order under s. 440 of the Municipal Act, restraining the respondent landlords from using their houses as multi-unit rentals contrary to the municipal by-law which did not allow lodging houses containing more than two bedrooms for rent. The multi-unit rentals were occupied by groups of students, as tenants. The decision was upheld by the Court of Appeal which found no error in the Justice Howden’s treatment of the relevant statutory provisions (including s. 440 of the Municipal Act, 2001) and case law. Leave to appeal to the Supreme Court of Canada was refused. The Court of Appeal’s decision was released four years after its decision in Fraser. There was no suggestion in Neighbourhoods of Winfields that the Residential Tenancies Act defeated the statutory jurisdiction of the Superior Court to make a restraining order under s. 440.

[67] If the Clinic’s position is accepted, the City would be required to stand down in the face of urgent health and safety issues, pending an application to terminate the tenancies under the Residential Tenancies Act by a landlord who may, or may not, be motivated to act.

[68] It seems unreasonable that for reasons of public health and safety the City could order the closure of a residential building occupied solely by the owner and the owner’s family, but would be unable to close the same building if a tenant also resided there.

[69] In London Property Management Assn. v. London (City), 2011 ONSC 4710, at para. 54, Leitch J. noted that:

…as a matter of statutory interpretation, courts should attempt to interpret two potentially conflicting pieces of legislation in a way that avoids a conflict. In Brantford (City) Public Utilities Commission v. Brantford (City), (1998) 1998 1912 (ON CA), 36 O.R. (3d) 419, the Ontario Court of Appeal said at para. 27:

In dissolving the Public Utilities Commission and establishing the Hydro-Electric Commission the City was not exercising any of the powers given to municipalities by Bill 26. More importantly, in my view, the exercise of those powers did not conflict with s. 210.4 or the regulations. In approaching this issue it is important to bear in mind a fundamental principle of statutory construction that courts should attempt to avoid finding a conflict between two pieces of legislation. Anglin J. expressed this principle in The Toronto Railway Company v. Paget (1909), 1909 10 (SCC), 42 S.C.R. 488 at p. 499:

• It is not enough to exclude the application of the general Act that it deals somewhat differently with the same subject-matter. It is not “inconsistent” unless the two provisions cannot stand together.

[70] In my view, a closure order under s. 447.1 of the Municipal Act, 2001 is not a termination order that is within the exclusive jurisdiction of the Board under the Residential Tenancies Act.

[71] The respondents, in their submissions, have asked me to make an order declaring that the tenancy agreements with the tenants on the second and third floors of the Property have been frustrated. The City did not seek an order of a declaration of frustration in its application.

[72] Section 19 of the Residential Tenancies Act provides:

The doctrine of frustration of contract and the Frustrated Contracts Act apply with respect to tenancy agreements.

[73] The Board, under the Residential Tenancies Act, can make a determination of whether a tenancy is frustrated.

[74] A decision was issued by the Board on September 28, 2010, in Toronto, File Number TSL-05808-10, on the issue of frustration. The City of Toronto had issued an order on September 28, 2010 to the effect that the residential complex was unsafe and that occupancy of the rental unit was prohibited. The Board cited s. 19 of the Residential Tenancies Act and explained:

Essentially the doctrine of frustration says that when a contract becomes impossible of performance, then the contract has come to an end. As the doctrine applies to residential tenancy agreements what this means is that when a residential complex cannot be physical lived in anymore because it has been condemned, the tenancy has come to an end by operation of law.

[75] The Board issued an order declaring the tenancy terminated by operation of the doctrine of frustration.

[76] In London (City) v. Ordinal, 2010 ONSC 1998, the residential tenancy property was expropriated by the City of London. The tenant argued that he could not be evicted unless a ground could be established under the Residential Tenancies Act. He submitted that the Expropriations Act and the Residential Tenancies Act were in conflict and that the Residential Tenancies Act should prevail.

[77] Section 34(2) of the Expropriations Act provides:

Where all the interest of a lessee in land is expropriated … the lease shall be deemed to be frustrated from the date of the expropriation.

[78] Section 35 of the Expropriations Act provides:

Where land has been expropriated, the compensation stands in the stead of the land, and any claim to or encumbrance on the land is, as respects the expropriating authority, converted into a claim to or upon the compensation and no longer affects the land.

[79] Heeney J. held, at paras. 11-16 that both the lease and the relationship of landlord and tenant had been extinguished. He found that the Expropriations Act and the Residential Tenancies Act were not in conflict. Because the tenant’s lease had been frustrated by law and because his leasehold interest had, in effect, been expropriated, he no longer had an interest in the land and it was not necessary to seek termination of the tenancy under the Residential Tenancies Act. The tenancy no longer existed. Heeney J. made a declaration that the lease was deemed to be frustrated pursuant to s. 34(2) of the Expropriations Act, as of the date of expropriate.

[80] The Municipal Act, 2001, does not contain provisions similar to s. 34(2) and s. 35 of the Expropriations Act. There is no provision in the Municipal Act, 2001 that deems a lease to be frustrated because a closure order has been issued or that a claim of a tenant on the land shall be converted to a claim for compensation because the tenancy has been extinguished at law.

[81] Because the application before me does not request a declaration of frustration, it is unnecessary for me to decide that issue. I make no finding as to whether the tenancy agreements have been frustrated by the one year closure order or by the injunction under s. 440 of the Municipal Act, without prejudice to the landlord or tenants making an application under the Residential Tenancies Act to have the Board determine the question of frustration and possible termination of the leases.

Conclusion

[82] An order shall go in accordance with the terms that are attached at Schedule “A” to these Reasons.

[83] I have heard submissions from the City, the respondents and the Clinic, as to when the closure should be effective. All counsel appeared to agree that, if a closure order was to be granted, the tenants should have some reasonable time, especially over the winter months, to search out new accommodation. The consensus of counsel was that April 1, 2019 would be a reasonable date for the closure. I accept that April 1, 2019 is a reasonable date and closure shall be effective on that date. I understand that the City has made offers to assist the tenants in this regard and will continue to offer assistance in locating new accommodation.

Costs

[84] The parties and the Clinic have agreed that there shall be no order as to costs.

“original signed by”

The Hon. Mr. Justice D. C. Shaw

Released: December 19, 2018

COURT FILE NO.: CV-18-0027-00

DATE: 2018-12-19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

THE CORPORATION OF THE CITY OF KENORA

Applicant

• and -

EIKRE HOLDINGS LTD., DARRYL EIKRE AND PHYLLIS EIKRE

Respondents

DECISION ON APPLICATION

Shaw J.

Released: December 19, 2018

/sab