Mortgagor's and Tenants under a Power of Sale Action (Section 52 MA and the RTA)

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Date Retrieved:	2024-04-27
CLNP Page ID:	2222
Page Categories:	[Legal Principles], [Jurisdiction], [Appeals], [Hearing Process (LTB)]
Citation:	Mortgagor's and Tenants under a Power of Sale Action (Section 52 MA and the RTA), CLNP 2222, <https://rvt.link/6s>, retrieved on 2024-04-27
Editor:	Sharvey
Last Updated:	2023/06/27

Toronto-Dominion Bank v. Hosein, 2016 ONCA 628 (CanLII)

[17] Statutes dealing with similar subjects are presumed to be coherent and consistent. Interpretations favouring harmony should prevail over discordant ones: Pointe-Claire (City) v. Quebec (Labour Court), 1997 CanLII 390 (SCC), [1997] 1 S.C.R. 1015, [1997] S.C.J. No. 41, at para. 61; Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis, 2014), pp. 416-17. Finally, the legislature does not intend to produce absurd consequences, such as rendering a provision meaningless: Rizzo, at para. 27.

[18] Here, the RTA is concerned with the termination of existing tenancies. By contrast, s. 52 of the MA provides a mechanism to have a tenancy agreement set aside. There is no provision in the RTA to set aside a tenancy agreement.

[19] The different words used -- to set aside and to terminate -- must be presumed to have different meanings. Black's Law Dictionary defines "set aside" as "to annul or vacate (a judgment, order, etc.)". The Dictionary of Canadian Law, 4th ed. (Toronto: Carswell, 2011) defines "set aside" as "to nullify". According to both law dictionaries, "terminate" means "to bring to an end". That these terms are not meant to be synonyms is also demonstrated by the heading of the section of the MA immediately following s. 52. The heading provides for the "termination of tenancy", and then refers to the process under the RTA.

[20] Counsel for the appellant compared the situation to an annulment of a marriage versus a divorce. This is an accurate analogy. In the former case, the marriage is treated as never having existed whereas in the latter case, the marriage is ended. Likewise here, to "set aside" the tenancy agreement indicates that the tenancy never existed; to terminate it indicates that it is being brought to an end. This interpretation is consistent with the word "annuler" in the French version of the Mortgages Act. The French version of s. 52 provides for a "[r]equête en annulation de la location", and states that:

52(1) La Cour supérieure de justice peut, sur requête du créancier hypothécaire, modifier ou annuler une convention de location . . .

...

[27] In this case, the appellant's notice of application before the Superior Court was "for an order setting aside an alleged tenancy agreement" made between Boodhoo and Hosein. The application did not seek to terminate the tenancy. Fraser holds that the inherent jurisdiction of the courts to make an order evicting a residential tenant is ousted by the RTA. Here, jurisdiction is specifically given to the Superior Court by s. 52 of the MA not to terminate but to set aside a tenancy agreement when it was entered into by a mortgagor under certain conditions. The jurisdiction of the Superior Court to apply s. 52 of the MA has also been recognized by the board: File Number: TET-66943-16, 2016 LNONLTB 391, 2016 CanLII 38767, at paras. 14 and 18; File No. CEL-02248, 2007 LNONLTB 27, at para. 47.

[28] In short, there is no conflict between the RTA and s. 52 of the MA. [page233]

Residential Tenancies Act, 2006, S.O. 2006, c. 17

3 (1) This Act, except Part V.1, applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary. 2013, c. 3, s. 22 (1).

...

(4) If a provision of this Act conflicts with a provision of another Act, other than the Human Rights Code, the provision of this Act applies. 2006, c. 17, s. 3 (4).

...

37 (1) A tenancy may be terminated only in accordance with this Act. 2006, c. 17, s. 37 (1).

Termination by notice

(2) If a notice of termination is given in accordance with this Act and the tenant vacates the rental unit in accordance with the notice, the tenancy is terminated on the termination date set out in the notice. 2006, c. 17, s. 37 (2).

...

168 (1) The Ontario Rental Housing Tribunal is continued under the name Landlord and Tenant Board in English and Commission de la location immobilière in French. 2006, c. 17, s. 168 (1).

Board’s jurisdiction

(2) The Board 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. 2006, c. 17, s. 168 (2). (Emphasis added)

...

174 The Board has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction under this Act. 2006, c. 17, s. 174.

...

207 (1) The Board may, where it otherwise has the jurisdiction, order the payment to any given person of an amount of money up to the greater of $10,000 and the monetary jurisdiction of the Small Claims Court. 2006, c. 17, s. 207 (1).

(2) A person entitled to apply under this Act but whose claim exceeds the Board’s monetary jurisdiction may commence a proceeding in any court of competent jurisdiction for an order requiring the payment of that sum and, if such a proceeding is commenced, the court may exercise any powers that the Board could have exercised if the proceeding had been before the Board and within its monetary jurisdiction. 2006, c. 17, s. 207 (2).

(3) If a party makes a claim in an application for payment of a sum equal to or less than the Board’s monetary jurisdiction, all rights of the party in excess of the Board’s monetary jurisdiction are extinguished once the Board issues its order. 2006, c. 17, s. 207 (3).

(4) The Board shall not make an order for the payment of an amount of money if the amount is less than the prescribed amount. 2006, c. 17, s. 207 (4).

Mortgages Act, R.S.O. 1990, c. M.40

PART V MORTGAGEES IN POSSESSION OF RENTAL RESIDENTIAL PREMISES

...

46 (1)  In the event of a conflict between this Part and any other provision of this Act or any other Act, this Part prevails unless the provision or the Act states that it is to prevail over this Part.

(2)  This Part applies despite any agreement to the contrary. 1991, c. 6, s. 2.

(3)  This Part and section 27 apply to,

(a) tenancies of residential units and tenancy agreements whether entered into before or after the 13th day of June, 1991;

(b) mortgages, whether registered before or after the tenancy agreement was entered into, or the 13th day of June, 1991. 1991, c. 6, s. 2; 1997, c. 24, s. 215 (4).

...

48 (1) No person exercising rights under a mortgage may obtain possession of a rental unit from the mortgagor’s tenant except in accordance with the Residential Tenancies Act, 2006. 1997, c. 24, s. 215 (9); 2006, c. 17, s. 252 (8).

(2) A person exercising rights under a mortgage who gives notice of termination of a tenancy shall be deemed to be a landlord under subsection 47 (1). 1991, c. 6, s. 3.

...

52 (1)  The Superior Court of Justice may on application by the mortgagee vary or set aside a tenancy agreement, or any of its provisions, entered into by the mortgagor in contemplation of or after default under the mortgage with the object of,

(a) discouraging the mortgagee from taking possession of the residential complex on default; or

(b) adversely affecting the value of the mortgagee’s interest in the residential complex. 1997, c. 24, s. 215 (13); 2000, c. 26, Sched. B, s. 14 (5).

(2)  In considering the application, the judge shall have regard to the interests of the tenant and the mortgagee. 1991, c. 6, s. 3.

Fraser v. Beach, 2005 CanLII 14309 (ON CA)

[9] The question on this appeal is whether the Tenant Protection Act, 1997, S.O. 1997, c. 24, unequivocally indicates the legislature's [page386] intent to limit the court's jurisdiction to make an order evicting a residential tenant.

...

[13] The neighbours submit that the Superior Court's order that the tenants vacate the premises was simply the method of enforcing its earlier order restraining the landlords from operating the illegal rooming house. The earlier order is not attacked. They say it does not make sense to read the Tenant Protection Act as taking away the rights of governments and private persons simply because they are neither landlords nor tenants. They submit that the activities of residents of an illegal [page387] rooming house may affect the health and safety of neighbours, and that persons so affected must have a remedy. Likewise, a city must be able to enforce its by-laws. It cannot be the case, they say, that a landlord can continue to operate an illegal rooming house in flagrant contravention of the by-law while a city remains powerless to do anything about it. (In this case, the city is not a participant in the proceedings.)

[14] I do not accept these submissions. The following provisions of the Act are 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 Protecti on Act prevails.

[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.

Bye Estate v. Adair, 2020 ONSC 7439 (CanLII)

[22] Section 168(2) of the RTA states: “The Board 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.”

...

[27] To determine whether it is the Board or a court that has jurisdiction over a dispute involving a landlord and a tenant, it is not the nature of the dispute that governs. The key question in such disputes relates to whether the essential character of the dispute, in its factual context, arises either expressly or inferentially from the statutory scheme: Regina Police Association Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14 (CanLII), [2000] 1 S.C.R. 360, at para. 39. So, in Mackie v. Toronto (City) and Toronto Community Housing Corporation, 2010 ONSC 3801, the Court held at para. 44:

“If the essential character of the dispute, in its factual context, arises from the statutory scheme, it does not matter that the claim is asserted for a cause of action which is ordinarily within the jurisdiction of the courts and upon which the legislation may be silent. The characterization of the dispute is resolved by whether the subject matter of the dispute expressly or inferentially is governed by the statute[.]”

[28] The jurisdiction of the Board is set out in the RTA. The Board has exclusive jurisdiction to determine all applications under the RTA with respect to all matters in which it is given jurisdiction by the RTA. Because of this exclusivity of jurisdiction, if the Board has jurisdiction, then the Small Claims Court does not, even though both have a monetary jurisdiction of $25,000: Efrach v. Cherishome Living, 2015 ONSC 472, at paras. 5-6.