) ) KATRY MARIA SERTIC Respondent (Landlord) – v. –, 2017 ONSC 263

CITATION : Sertic v. Mergarten, 2017 ONSC 263 DIVISIONAL COURT FILE NO.: 280/16 LTB FILE NOS .: TSL-62768-15-RV2 TST-64537-15-RV2 DATE: 20170111 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT NORDHEIMER, STEWART and LABROSSE JJ.

BETWEEN: ) ) KATRY MARIA SERTIC Respondent (Landlord) – and – DANIELA MERGARTEN Appellant (Tenant) ) ) ) ) ) ) ) )) ) David Strashin , for the Respondent (Landlord) Karen Andrews , for the Appellant(Tenant) Brian A Blumenthal for the Landlord and Tenant Board ) ) HEARD at Toronto: January 11, 2017 NORDHEIMER J. (orally) [ 1 ] Daniela Mergarten, the tenant, appeals from two orders of the Landlord and Tenant Board. The first order allowed the landlord’s application to evict the tenant so that the landlord could take possession of the premises for her own purposes.

The second order dismissed the tenant’s request for a review of the first order. [ 2 ] An appeal lies to the Divisional Court from an order of the Board restricted, though, to a question of law: Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 210. [ 3 ] The matter proceeded in a somewhat unusual way.

The landlord had sought to evict the tenant on an earlier occasion, but the Board found that the landlord’s wish to repossess the premises was more for the purposes of a conversion and not for the purposes of “residential occupation” under s. 48(1) of the Residential Tenancies Act, 2006 because storage did not constitute such a use. [ 4 ] The landlord then brought a second application to evict the tenant for the purpose of converting the premises for non- residential use – a process that the Board had suggested, in its reasons on the first application, the landlord might use. [ 5 ] When the second application came before a Vice-Chair of the Board, he raised an issue whether the holding by the Board on the first application was correct.

In particular, the Vice-Chair expressed doubt about the conclusion, that using the premises for storage that was related to the landlord’s personal occupation of the premises, did not constitute residential occupation. I note that the premises in question are the basement of a house that the landlord otherwise occupies. The Vice-Chair then adjourned the hearing to allow the parties to make submissions on this issue.

The hearing continued on two subsequent dates after which the Vice-Chair made the decision that is now the subject of this appeal. [ 6 ] At the time that this matter was heard, the rules of the Board, under rule 29.1.1, expressly permitted a Vice-Chair of the Board to initiate a review of any order or decision. The rules have since been amended to give that authority to the Board as a whole: rule 29.4. It was therefore open to the Vice-Chair to take the steps that he did to revisit the earlier order.

There was no prejudice to the parties in doing so, as they were given ample time to regroup and respond to the concerns that the Vice-Chair raised, nor was there any procedural unfairness visited on the parties by the manner in which the Vice-Chair chose to raise the issue. [ 7 ] While the tenant raises issues regarding the bona fides of the landlord’s desire to occupy the premises for her own purposes, the Vice-Chair heard the evidence on this point, and was satisfied that was the intention of the landlord.

The tenant submits that that finding was not open to the Board because the landlord’s affidavit did not so state. I am unaware of any legal principle that provides that

the contents of an affidavit overrules the viva voce evidence heard. While conflicts between the two are always a matter of concern, it isultimately up to the trier of fact to decide what evidence they accept and what they do not. The Board accepted the viva voce evidence ofthe landlord. There is no basis for this court to interfere with his conclusion on the evidence that he heard. [8] I also do not find any basis to interfere with the Vice-Chair’s conclusion as to the proper meaning of the term “residentialoccupation”. In my view, the Vice-Chair’s

interpretation, that requiring the premises for the purposes of storage and other uses directlyrelated to the landlord’s otherwise personal occupation of other portions of the premises meets the requirement of residential occupation,is a reasonable one. I note, on this point, that a tribunal’s

interpretation of its home statute is generally to be reviewed on a standard ofreasonableness, not correctness: First Ontario Realty Corp. v. Deng, 2011 ONCA 54 , [2011] O.J. No. 260 (C.A.). [9] Finally, I see no merit in the appellant’s contention that the Vice-Chair demonstrated a reasonable apprehension of bias inthe manner in which he dealt with this matter. The interest of the Vice-Chair was clearly to try and deal with the ultimate determinationin a manner that was as expeditious as possible.

This was in the best interests of all parties, and consistent with the general approach ofthe Board to matters that come before it, and its statutory mandate under s.183. The appellant may not like the result, but there is nobasis for suggesting that the handling of the matter by the Vice-Chair evidences any appearance of bias.

No reasonable person, fullyinformed of the facts, could conclude that the Vice-Chair was not an impartial and objective decision-maker. [10] Given my conclusions regarding the first order, there is no basis for interfering with the review order of the Board thatessentially reached the same conclusion. [11] The appeal is dismissed. COSTS [12] I have endorsed the Appeal Book and Compendium as follows: “For oral reasons given today, the appeal is dismissed.

Whilethe landlord and tenant agreed that costs of $2,500 are reasonable, given the unusual way in which this matter arose, particularly at theinstance of the Board itself, we would exercise our discretion and make no order as to costs.” ___________________________ Nordheimer J. I agree ___________________________ Stewart J. I agree ___________________________ Labrosse J. Date of Reasons for Judgment: January 11, 2017 Date of Release: January 12, 2017 CITATION: Sertic v. Mergarten, 2017 ONSC 263 DIVISIONAL COURT FILE NO.: 280/16 LTB FILE NOS.: TSL-62768-15-RV2 TST-64537-15-RV2DATE: 20170111

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT NORDHEIMER, STEWART and LABROSSE JJ. BETWEEN: KATRY MARIA SERTIC Respondent (Landlord) – and – DANIELA MERGARTEN Appellant (Tenant) ORAL REASONS FOR JUDGMENT NORDHEIMER J. Date of Reasons for Judgment: January 11, 2017 Date of Release: January 12, 2017