Termination of a Tenancy

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

[25] The respondent relies on this court’s decision in Fraser v. Beach (2005), 2005 CanLII 14309 (ON CA), 75 O.R. (3d) 383, to support the application judge’s determination that the jurisdiction of the Superior Court is ousted by the provisions of the RTA. At issue in Fraser was an order of the Superior Court in a nuisance action. The Superior Court ordered the tenants to vacate the premises as a method of enforcing an earlier order restraining the landlord from operating an illegal rooming house. This court held that the tenancies could only be terminated by the Board pursuant to the predecessor statute to the RTA.

[26] Fraser is not applicable here. In Fraser and in Parker v. Yundt, 2012 ONSC 244 (CanLII), the applicants sought to terminate existing tenancies. The tenancy agreements were presumed to be valid.

[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 CanLII 38767, at paras. 14 and 18; File No. CEL-02248, 2007 LNONLTB 27, at para. 47.