2023 ONSC 910, 2023 ONSC 910

CITATION : 2008838 Ontario Limited v. King, 2023 ONSC 910 DIVISIONAL COURT FILE NO.: 122/19 DATE: 20230210 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: 2008838 ONTARIO LIMITED and JOHN LEE , Appellants AND: CARLTON KING , Respondent BEFORE: Lederer, McCarthy, Matheson JJ.

COUNSEL: Bill Wong , for the Appellant Brendan Jowett , for the Respondent HEARD at Toronto: February 8, 2023 (by videoconference) ENDORSEMENT [ 1 ] This is an appeal from the decision of the Landlord and Tenant Board (LTB) dated January 14, 2019, and the subsequent review order dated February 25, 2019, by which the LTB ordered that the appellants pay the respondent/tenant damages for an illegal eviction. [ 2 ] The corporate appellant owns the Toronto property at issue in this appeal. The appellant John Lee is the sole director of the corporate appellant.

The respondent lived in a unit in the property and was the subject of an eviction that did not comply with the Residential Tenancy Act, 2006 , S.O. 2006, c. 7 ( RTA ), including the removal of his door and the subsequent disposal of the contents of his unit. He had to go to a number of homeless shelters. The appellants took the position that the RTA did not apply. The respondent applied to the LTB for a remedy. [ 3 ] The LTB found that the RTA applied, and the appellants were ordered to pay $17,020 to the respondent as a result of an illegal eviction.

The respondent has since agreed that there was a calculation error in that figure, and the correct figure is $14,620. [ 4 ] The appellants advance a number of issues, beginning with jurisdiction. They submit that the LTB erred in law in finding that the exemption in s. 5 (

i) of the RTA did not apply. We address that issue first. The standard of review is correctness. [ 5 ] Subsection 5(

i) provides as follows: 5. This Act does not apply with respect to, … (

i) living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner , the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located; [Emphasis added.] [ 6 ] The LTB decided that the respondent did not share a bathroom or kitchen with the owner, since the owner was a corporation. Subsection 5 (

i) did not apply. [ 7 ] The appellants do not dispute that the corporate appellant is the registered owner of the property. However, they submit that the LTB should have found that Mr. Lee, as the directing mind of the corporation, was a “de facto” owner. They then submit that because he lived in the building, the requirements of s. 5 (

i) were met. The respondent disputes both positions. [ 8 ] In support of this jurisdictional argument, the appellants submit that the LTB erred in failing to follow its 2014 decision TSL-56599-14-1N2 ( Re CAPRREI ). We note that Re CAPRREI was not put before the LTB at the hearing or the review, and that it is not, in any event, binding on the LTB. [ 9 ] In Re CAPRREI , the issue was whether a corporation could be an “occupant” of a premises. The LTB found that “occupant” had a broader meaning than only including a living person who sleeps and eats.

The LTB found that the corporation did take possession and exercise control over the premises, which met a broad definition of “occupant”. This case does not cause us to conclude that Mr. Lee was an owner under s. 5 (i). Here, eating and other human activities are very much the issue under s. 5(i). Subsection 5(

i) is focused on who is “living” in the premises, without using the term “occupant”. [ 10 ] Mr. Lee’s argument can also be seen as saying that the corporate owner acts through him. There are at least two problems with this submission. First, the language used in s. 5 (

i) lists specific relationships with an owner that would satisfy the exemption. The list comprises human beings and does not include a director of a corporation or a guiding mind of a corporate owner. As well, Mr. Lee himself submitted that he was not at one with the corporation. He submitted to the LTB (unsuccessfully) that he was not the landlord – the corporation was the landlord – and he was a tenant of the corporation. [ 11 ] The appellants also rely on s. 202(1) of the RTA , which provides that in making findings, the LTB shall ascertain the real substance of transactions and activities and in doing so, “may disregard the outward form of a transaction or the separate corporate

existence of participants.” In this case, the LTB did not exercise its discretion to disregard the separate corporate existence of the owner of the premises. Given the language of the exemption in s. 5(i), discussed above, we do not find that this was an error of law. [ 12 ] Based on admissions, we are not persuaded that the s. 5(

i) exemption applies in this case. The other arguments are therefore considered on the basis that the RTA does apply. [ 13 ] The appellants raise issues of procedural fairness regarding the conduct of the hearing and the evidence. We note that appeals to this court are limited to questions of law (including procedural fairness), not issues regarding factual matters. Further, the LTB has a mandate to confine the evidence it hears to the issues that are actually in dispute and has a practical imperative to conduct focused and efficient hearings: Harper v.

Sauve , 2022 ONSC 5754 , at para. 12 . [ 14 ] The appellants submit that the LTB erred in ruling that they were both landlords without an evidentiary foundation. With respect to damages, the respondent put forward a list of the possessions that were destroyed. The appellants submit that they were not given the list until the last minute and the respondent was not sworn in as a witness to substantiate his damages claim. They further submit that the LTB should have done more to assist Mr. Lee, who was self-represented. The appellants submit that Mr.

Lee should have been able to call evidence regarding the lack of mitigation and evidence to “set off” the damages claim. [ 15 ] On a review of the transcript, it is apparent that Mr. Lee began by raising the jurisdiction issue. He went on to say that if more complicated legal issues arose, he would ask for an adjournment, but he was ready to proceed with the hearing. He made a number of admissions at the outset regarding ownership.

The respondent was sworn in and testified, including his description of the eviction, the promise that his belongings would be stored, becoming homeless, his list of his possessions, and other aspects of his damages claim. The list included approximate values – the receipts he had were among the belongings that were gone. Mr. Lee was asked if he disputed the accuracy of the list and replied that he was “not paying attention to the cost amount.” Mr. Lee was invited to question the respondent and did not do so. [ 16 ] Mr. Lee also testified, was invited to put forward documents and was asked about witnesses.

He had brought a witness – Ms. Lee. Mr. Lee indicated that her evidence was about where the respondent’s belongings were kept and when they were thrown out, not about the harm suffered by the respondent. She was therefore not invited to testify. Mr. Lee had already confirmed that the belongings had been thrown out. At the end of the hearing, Mr.

Lee asked for an adjournment to retain a lawyer and that request was denied. [ 17 ] Having the considered the issues put forward, we conclude that the appellants were afforded procedural fairness and that a number of the issues raised on this appeal relate to findings of fact based on the evidence and cannot be challenged on this appeal. [ 18 ] We therefore dismiss this appeal, with the corrected monetary amount of $14,620, and without costs. ___________________________ Lederer J. ___________________________ McCarthy J. ___________________________ Matheson J. Date: February 10, 2023