) ) EUGENE MUSZAK Tenant (Appellant) – v. –, 2013 ONSC 1686

CITATION : Muszak v. Recchia, 2013 ONSC 1686 DIVISIONAL COURT FILE NO.: 442/12 DATE: 20130319 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BROWN R.S.J., SWINTON AND LEDERER JJ. BETWEEN: ) ) EUGENE MUSZAK Tenant (Appellant) – and – FRANCO RECCHIA Landlord (Respondent) )) )) )) )) ))) David S.

Strashin , for the Tenant (Appellant) Yehuda Levinson , for the Landlord (Respondent) ) ) ) ) ) HEARD at Toronto: March 19, 2013 SWINTON J. (orally) [ 1 ] The Landlord and Tenant Board, in a decision dated August 13, 2012, granted the respondent/landlord’s application pursuant to s. 48 of the Residential Tenancies Act, 2006 , S.O. 2006, c. 17 (“the Act”).

The Board found that the landlord, in good faith, required the rental unit of the appellant/tenant for purposes of residential occupation. [ 2 ] An appeal lies to this Court only on a question of law ( Residential Tenancies Act, s. 210(1)). [ 3 ] The tenant takes issue with the Board’s finding of good faith. In effect, he asks this Court to reweigh the evidence. That is not our task. The Board identified the governing legal principles, including the onus on the landlord to demonstrate good faith.

There was adequate evidence to support the Board’s finding that the landlord required the unit on a full time basis for his family. Accordingly, this ground of appeal raises no question of law. [ 4 ] The only question remaining is whether the affidavit required by s. 72 of the Act must be provided by the son. The affidavit is to be sworn by the person who, in good faith, requires the unit for his or her personal use. The Act says “use” not occupation. Here, the Board accepted that the landlord requires the unit for his personal use.

He seeks to use it himself along with his wife and son, who the Board found will live there on a full time basis. The requirement that the affidavit be provided as a confirmation of good faith is met. In our view, the affidavit was sufficient. Moreover, we note that the tenant failed to raise any issue of the sufficiency of the affidavit before the Board.

[ 5 ] For these reasons, the appeal is dismissed. BROWN R.S.J. COSTS [ 6 ] On behalf of the panel, I have endorsed the Appeal Book and Compendium, “For reasons given orally, appeal dismissed. Costs are fixed at $2,500 inclusive of disbursements and HST, payable to the respondent. Appellant will have 30 days to pay the costs. The stay of the eviction order will be lifted forthwith.” SWINTON J. BROWN R.S.J. LEDERER J. Date of Reasons for Judgment: March 19, 2013 Date of Release: May 1, 2013 CITATION : Muszak v. Recchia, 2013 ONSC 1686 DIVISIONAL COURT FILE NO.: 442/12 DATE: 20130319 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BROWN R.S.J., SWINTON AND LEDERER JJ. BETWEEN:

EUGENE MUSZAK Tenant (Appellant) – and – FRANCO RECCHIA Landlord (Respondent) ORAL REASONS FOR JUDGMENT SWINTON J. Date of Reasons for Judgment: March 19, 2013 Date of Release: May 1, 2013