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Administrative - Issue Estoppel

. Sutton v. Patterson and Morrow

In Sutton v. Patterson and Morrow (Div Ct, 2021) the Divisional Court decided that the LTB has jurisdiction to decide whether occupants owned land lease cottages in order to decide their treatment under the RTA, but that such a finding did prejudice the ownership issue for non-RTA purposes (ie. issue estoppel did not apply):
[23] Thereafter, the Board issued an Interim Order in which it rejected the argument that it lacked jurisdiction to determine ownership. The Board found it necessary to determine whether the rental units consisted of just the land, or the land and the cottages, in order to dispense with the applications. More specifically, because the Appellant asserted that he required the cottages for his children’s use, the Board found it could only evict if the “rental units” at issue were the cottages. Alternatively, if, as the Respondents asserted, they owned the cottages, then the Board could not order eviction because the “rental unit” was the land or site on which the cottages were situated.

[24] As a result, the Board gave the parties the opportunity to make additional written submissions and present evidence on the issue of ownership. In their submissions, none of the parties asserted that the Board lacked jurisdiction to determine ownership because it had already made a decision that it did not have jurisdiction to decide this issue, nor did anyone object to the Board’s direction that the second part of the hearing on the issue of ownership be conducted in writing as opposed to orally. [25] After considering all of the evidence, the Board, in preferring the Respondents’ view on the subject of ownership, found it more likely than not that the cottages were each a “land lease home”, which the Board was entitled to do.

[26] The RTA gives the Board exclusive jurisdiction to determine all applications under the Act and gives it the authority to hear and determine all questions of fact and law with respect to all matters within its jurisdiction, specifically:
168(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.

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.
[27] The Appellant filed an application under s. 48(1) of the RTA. It is uncontested that the Board had exclusive jurisdiction to determine it. By virtue of ss. 168(2) and 174, in so determining, the Board had authority to hear and determine all questions of fact and law with respect to the application.


[33] In Warraich v. Choudhry, 2018 ONSC 1267 (Div. Ct.), at paras. 41 and 57 (“Warraich 2”), the Court rejected the argument that the Board erred in law or exceeded its jurisdiction in determining that the Appellant was not a co-owner of the property. Rather, the Court found that the Board made its determination for the purpose of deciding whether the Appellant was a “tenant” within the meaning of the RTA and not to address any rights or obligations flowing from an ownership interest. Determinations made for such a limited purpose are not binding on a court and a party is not prejudiced.

[34] As of the date of this hearing, there was no extant application initiated in the Superior Court to determine the ownership issue. Rather, the Appellant chose not to seek court determination of ownership for reasons that were not explained in the record. In any event, in my view, the Appellant is not prejudiced from prosecuting the ownership issue in other contexts because the finding of the Board was made solely for the purpose of determining what constituted the “rental unit” within the meaning of the RTA.


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Last modified: 02-04-23
By: admin