Defining a Commercial Tenancy (CTA)

Commercial Tenancies Act, R.S.O. 1990, c. L.7

1 In this Act,

“landlord” includes a person who is lessor, owner, the person giving or permitting the occupation of the premises in question, and these persons’ heirs and assigns and legal representatives, and in Parts II and III also includes the person entitled to possession of the premises; (“locateur”)

“tenant” includes a person who is lessee, occupant, sub-tenant, under-tenant, and the person’s assigns and legal representatives.

2 This Act does not apply to tenancies and tenancy agreements to which the Residential Tenancies Act, 2006 applies. 1997, c. 24, s. 213 (3); 2006, c. 17, s. 247.

2.1 This Act does not apply with respect to a property in which the Crown in right of Ontario has an interest if one of the following circumstances applies in respect of the property:

1. The property was forfeited to the Crown in right of Ontario under any Ontario statute or the Criminal Code (Canada).

2. Possession of the property has been or may be taken in the name of the Crown in right of Ontario under the Escheats Act, 2015.

3. The property is forfeited corporate property to which the Forfeited Corporate Property Act, 2015 applies. 2015, c. 38, Sched. 7, s. 46.

3 The relation of landlord and tenant does not depend on tenure, and a reversion in the lessor is not necessary in order to create the relation of landlord and tenant, or to make applicable the incidents by law belonging to that relation; nor is it necessary, in order to give a landlord the right of distress, that there is an agreement for that purpose between the parties. R.S.O. 1990, c. L.7, s. 3.

(...)

15 Where a valid power of leasing is vested in, or may be exercised by, a person granting a lease, and, by reason of the determination of the estate or interest of such person or otherwise, the lease cannot have effect and continuance according to the terms thereof independently of such power, the lease shall for the purposes of sections 11 to 14 be deemed to be granted in the intended exercise of such power although such power is not referred to in the lease. R.S.O. 1990, c. L.7, s. 15.

Newman v. Glanville, 2019 ONSC 1040 (CanLII)

[1] Mr. Newman owns a house which is located at 446 Whitmore Avenue in Toronto. Cedric Glanville became a tenant in Mr. Newman’s home in August, 1994. It appears that the two friends never did have a written lease but Mr. Glanville paid his rent weekly and they shared the house for many years.

[2] Mr. Newman now applies under rule 14.05 for an order to evict Mr. Glanville.

[3] Mr. Newman has filed an affidavit in which he indicates that he first gave written notice to Mr. Glanville to leave the house back in 2010. He has repeatedly asked him to leave since then but Mr. Glanville has refused. In the interim, Mr. Glanville has begun to drink heavily and makes no effort to clean up after himself. He has not paid his rent since March 9, 2018 and he refuses to pay his arrears despite repeated requests by Mr. Newman.

[4] Mr. Newman served a written Notice of Eviction on Mr. Glanville on August 8, 2018. The Notice gave Mr. Glanville 60 days to vacate the house. The notice clearly set out the reasons for the eviction including the failure to clean garbage from the home, a refusal to clean the bathroom leaving it in “a disgusting state” and the excessive use of utilities. Notwithstanding a very reasonable notice period, Mr. Newman has not vacated the house.

[7] Mr. Newman initially sought to evict Mr. Glanville from the home by applying to the Landlord and Tenant Board under the Residential Tenancies Act 2006. The board declined jurisdiction to hear the application citing section 5(i) of the Residential Tenancies Act which excludes jurisdiction in circumstances where the landlord and tenant share either a bathroom or a kitchen. Mr. Newman and Mr. Glanville share both. In those circumstances, the Commercial Tenancies Act applies rather than the Residential Tenancies Act.

[8] Mr. Newman’s grounds to bring this application can be found in section 20 of the Commercial Tenancies Act. Under that section, the court has a wide discretion to grant relief where there has been a breach of a lease agreement. The court may:

a. order the payment of rent;

b. make a costs order;

c. award damages: and

d. issue injunctive relief to restrain any future breach of the lease agreement.

[9] Section 20 also permits the court to provide the respondent with an opportunity to remedy the defaults which gave rise to the breach of the leasing agreement.

[10] Under section 19(2) of the Commercial Tenancies Act, an eviction from the property can only be obtained if proper notice has been given. The notice provided to the tenant must specify the breach of the lease that is alleged by the landlord and provide an opportunity to the tenant to remedy that breach. Under section 28 of the Act, a weekly tenancy can be terminated on one week’s notice.

[12] Mr. Glanville has had sufficient opportunity to address the failings that gave rise to his breach of the lease. Mr. Newman served him with a very clear notice in writing on August 8, 2018 and no rent has been paid since that day. Mr. Glanville has done nothing to repair the damage that he has caused.

[13] Mr. Glanville is now wrongfully in possession of the home. I have received no evidence or submissions from him that would dissuade me from issuing an eviction order.

[14] There will be an order declaring that the lease was terminated on October 8, 2018.

[15] There will be a further order granting a writ of possession to Mr. Newman. The writ of possession may be enforced by the Sheriff’s office if Mr. Glanville does not vacate the premises by February 28th, 2019.

SOT-53732-14-RV (Re), 2015 CanLII 24247 (ON LTB)

19. The leading case with respect to the interpretation of this section is Matthews et al. v. Algoma Timberlakes Corporation 2010 ONCA 468 (CanLII), the facts of which are distinguishable from the case at hand. In Algoma, the initial lease covered a 20 year period; the lessees were required to erect permanent structures for year round use; the structures were in fact used year round, in some cases as second homes.

20. The Landlord submitted the Board’s decision for Leduc v. Glen Echo Park Inc., but not the Superior Court’s decision. Regardless, I did not find the facts in Leduc to be on point as they involved a park with a naturalist philosophy for which membership is required prior to obtaining the right to rent living accommodation. The Member found that the living accommodation bore little resemblance to a residential tenancy.

21. In Putnam v. Grand River Conservation Authority 2006 CanLII 18526 (ON SCDC), the Divisional Court considered the Tribunal’s interpretation of section 3(a) of the Residential Tenancies Acts predecessor, the Tenant Protection Act. The Court found the Tribunal’s interpretation, that living accommodation occupied as temporary or seasonal residence is only exempt if it is part of the named and listed types of accommodation, to be correct. In this case, a campground and a trailer park are part of the named and listed types of accommodation.

22. Foster v. Lewkowicz et al. 1993 CanLII 8610 (ON SC), was submitted for the consideration of factors used in defining a “tourist home” under the Landlord and Tenant Act, which was the predecessor to the predecessor of the Residential Tenancies Act, 2006. In determining whether the premises were exempt, the Court looked at the intention of the parties and the overall nature of the premises, which was to be determined using a predominant purpose test. The Court specifically focussed on the reference in the exemption to “accommodation provided to the travelling and vacationing public”. However, the exemption in the current Act includes the words “or occupied for a seasonal or temporary period”. Accordingly, I do not find this case to be helpful in that it considers wording that is not relied on by the Respondent in this case.

23. In TNL-58688-14 the Board found that the Act applied to a trailer in which the occupant had occupied the site throughout the year. Despite the fact that the parties agreed that “the intended use for the specified site is for recreational vacation purposes” and that “the campground or trailer park is designed for seasonal or temporary use”. The Member looked at the real substance of the transaction and found that “the mobile homes are occupied by their owners during all seasons of the year”.

24. In EAT-00422-09 the Board found the Act applied to permanent structures built for year round use that were the subject of multiyear leases. This case is distinguishable from the facts in the case at hand.

25. Similarly, CET-09245-10 found the Act applied to cabins that were used year round, and “the lease did not restrict when the cabins could be used”. The evidence before the Member was that the cabins had been used periodically by the tenants year round.

26. In CET-05018-10, the Board found that a 5 month term for a tenancy did not mean that the living accommodation was intended to be temporary. However, in this case, the Member also found that the living accommodation was not in a hotel, motel, etc., which would disqualify the Landlord from falling under the exemption pursuant to the Putnam analysis found above. The order did not specifically address the issue of seasonal occupation.

27. In SWT-65538-14 the Board dealt with a mobile unit located in a park for 18 years, during which successive seasonal Licence agreements were entered into each year. The Member found the Act does not apply and distinguished Algoma on the basis that the licences are annual and define the seasonal nature of the contract, the fee is payable only over the season, and a separate storage fee is assessed for off-season storage. This case is the most similar in fact to the case at hand.

28. SWT-68358-14 also deals with a seasonal park in which trailers are placed on sites, they are used during much of the year, and the park is closed during the winter months. In finding that the Act did not apply, the Board rejected the Applicant’s argument that the relationship should be construed as a Landlord and Tenant relationship because it is theoretically possible to reside in the trailer year round.

29. In the case at hand, the site is located in a campground and is therefore a part of the named and listed types of accommodation found in subsection 5(a). The licence is clearly intended to be seasonal as the intent of the parties is that the park may not be used year round as a residence, and it has not been so used. The seasonal nature of the complex is further reinforced by a separate storage contract for the winter months, the inability of the licence holder to gain access in the winter without the permission of the Respondent, and the lack of water service to the site over the winter.

30. Accordingly, I find that the living accommodation is intended to be occupied for a seasonal period in a trailer park and is therefore exempt from the Act.

It is ordered that:

1. Order SOT-53732-14 issued on January 13, 2015 is cancelled and the application filed by the Tenant is dismissed.