2023 ONSC 4377, 2023 ONSC 4377

CITATION : Colafranceschi v. Nussbaum, 2023 ONSC 4377 DIVISIONAL COURT FILE NO.: 122/23 DATE: 20230822 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: LISA COLAFRANCESCHI , Appellant AND: AARON NUSSBAUM, Respondent BEFORE: Matheson J. COUNSEL: Self-Represented Appellant Bernie Romano and Saveria Romano , for the Respondent HEARD at Toronto: August 21, 2023, by videoconference ENDORSEMENT [ 1 ] The appellant/tenant appeals the decision of the Landlord and Tenant Board (“LTB”) dated January 25, 2023 and the related review order dated February 24, 2023.

The LTB ordered that the tenancy be terminated for the purpose of occupation by the landlord’s son. The LTB postponed the eviction until February 28, 2023. [ 2 ] The landlord is more than 90 years old and he wanted his son to be nearby to help him. After hearing testimony, the LTB found that the landlord in good faith required possession of the rental unit for a period of at least one year so that his son could move in.

The LTB considered whether the appellant should have relief from eviction under s. 83(2) of the Residential Tenancies Act, 2006 , and postponed her eviction, giving rise to the February 28, 2023, eviction date. [ 3 ] On the review, the tenant challenged the good faith finding and submitted that there was an error regarding the financial orders and daily compensation. The LTB found no reason to review the finding of good faith. On compensation, the LTB considered the error put forward by the tenant, finding that even if there had been a factual error, it would not change the result.

The review was therefore denied. [ 4 ] The tenant appealed and, in conjunction with the appeal, obtained a certificate in relation to the automatic stay of the eviction order dated February 28, 2023. [ 5 ] As set out in case management directions dated July 31, 2023, the tenant was given another opportunity to complete her court materials. The tenant had received the audio recording and had not had a transcript prepared.

She had a further opportunity to do so but did not have a transcript for the court hearing, although I accept that she made some efforts to obtain one. [ 6 ] The tenant puts forward these issues on her appeal: (

i) Did the landlord act in good faith? (ii) Did the LTB take into consideration what the evidence revealed? (iii) Was there a balance of probability of over 50% that the landlord’s son would uproot his family? (iv) Was there a genuine intent to move in? (

v) Did the monetary findings give rise to an error of law? (vi) Did the LTB err in law in not questioning the landlord? (vii) Were the Tribunal Members able to fulfil their functions given their background? [ 7 ] The right of appeal is limited to questions of law, as set out in s. 210 of the Residential Tenancies act, 2006 , S.O. 2006, c. 17 . [ 8 ] Having heard the submissions of the tenant, and considered the case law put forward, I conclude that issues (i)-(iv) above do not give rise to an error of law. The tenant has not shown any legal error in the LTB’s consideration of the evidence and resulting findings of fact on those issues.

[ 9 ] On issue (v), the tenant submits that the LTB erred in finding she was behind on rent and that error influenced the other findings. This issue arises because of the wording of the LTB order, which speaks about the tenant needing to make a large payment but also says the landlord must credit all amounts paid by the tenant against that amount. The result, which was that no payment was required, was not expressly stated. However, that did not lead to an error of law. The status of payments was not a ground for eviction and did not change the outcome, as noted in the review decision.

Further, although the calculation could have been better explained, it was the applicable calculation. [ 10 ] On issue (vi), the tenant submits that the Tribunal Member who conducted the hearing did not do so properly. The Tribunal Member received evidence from both the tenant and the landlord. The tenant submits that the Tribunal Member did listen to the tenant but failed to ask the landlord questions to further investigate the issue of good faith and the motives for the landlord’s application.

However, the Tribunal Member had evidence on the issues and was not obliged to question the landlord to further investigate those issue. The Tribunal Member correctly noted that the onus was on the landlord to prove that the premises were, in good faith, needed for occupation by the son. The Tribunal Member found that the landlord met the onus, on the evidence. There was no error of law. [ 11 ] Lastly, the tenant challenges the credentials of the Hearing Members who decided each LTB order. For the first order, the tenant submits that the Hearing Member was not a lawyer and had an unrelated educational background.

For the request for reconsideration, the tenant submits that the Hearing Member was a “new hire”, submitting that the Hearing Member was unable to consider the review and afraid of overturning a colleague’s decision. The tenant has not put this issue forward properly, but I will address it. This ground of appeal is unsuccessful. The tenant has not rebutted the presumption that these adjudicators competently and impartially addressed the issues before them. [ 12 ] This appeal is therefore dismissed.

I give the tenant an extension of time to vacate the premises, until September 30, 2023, after which the eviction can be enforced. The automatic stay that arose due to the commencement of this appeal is terminated. The tenant shall pay the landlord costs of this appeal fixed at $2,000, all inclusive, within 30 days from today. ___________________________ Matheson J. Date: August 22, 2023