Defining a Tenant (Minor Child)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-30
CLNP Page ID:	2294
Page Categories:	Contract Law, Leases, & Sub-Letting (LTB), Contract Law
Citation:	Defining a Tenant (Minor Child), CLNP 2294, <https://rvt.link/9b>, retrieved on 2024-04-30
Editor:	Sharvey
Last Updated:	2023/11/14

Toronto Marlboro Major Junior A Hockey Club et al. v. Tonelli et al., 1979 CanLII 1969 (ON CA)

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Lying at the centre of this action is the question whether or not the agreement made between the 17-year-old John Tonelli and the Toronto Marlboros is enforceable.

Generally, the law will not allow an infant to bind himself in contract. Most of the contracts entered into by an infant are either voidable at the option of the infant or void. There is, however, an exceptional and narrow range of infant's contracts the law will enforce.

In Doyle v. White City Stadium Ltd., [1935] 1 K.B. 110, Slesser, L.J., stated at p. 131:

The origin so far as we know of the definition of the class of contract binding upon infants on which Serjeant Sullivan relies (and nothing earlier has been suggested) is to be found in Coke upon Littleton, p. 172a, where he says: "An infant may bind himself to pay for his necessary meat, drink, apparell, necessary physicke, and such other necessaries, and likewise for his good teaching or instruction, whereby he may profit himselfe afterwards", and to that has been added in the course of years contracts of service which are to his benefit.

It is now a matter of some debate as to whether an infant's obligation to pay for necessaries supplied rests on his contractual liability or is founded in quasi contract. This problem, however, does not require resolution in this case. The plaintiffs seek to uphold the agreement between them and the defendant Tonelli as a contract of service which is to the benefit of the infant.

In a recent study published in the Canadian Bar Review, Mr. David R. Percy concludes:

... it is clear that an infant may be bound by a class of contracts generally described as contracts of service, which permit him to earn his livelihood or to be trained for some trade or profession. As indicated earlier, such contracts appear to be only a species of contracts for necessaries, the only significant difference being that they clearly bind the infant regardless of whether they are executory or executed.

As with contracts for necessaries, contracts of service bind the infant only if, on construction of the whole contract, they are beneficial in the opinion of the court. Because of the wide scope of this test, it is settled that the contract does not cease to be binding merely because some clauses are not to the infant's benefit.

(See Percy, "The Present Law of Infants' Contracts", 53 Can. Bar Rev. 1 (1975), at p. 9.)

It is clear that the burden rests on the plaintiffs to prove that the contract in this case was beneficial to the defendant Tonelli. In approaching the issue of whether or not the contract was to Tonelli's benefit, I subscribe to the words of Fry, L.J., in De Francesco v. Barnum (1890), 45 Ch.D. 430 at p. 439:

Now I approach this subject with the observation that it appears to me that the question is this, Is the contract for the benefit of the infant? Not, Is any one particular stipulation for the benefit of the infant? Because it is obvious that the contract of apprenticeship or the contract of labour must, like any other contract, contain some stipulations for the benefit of the one contracting party, and some for the benefit of the other. It is not because you can lay your hand on a particular stipulation which you may say is against the infant's benefit, that therefore the whole contract is not for the benefit of the infant. The Court must look at the whole contract, having regard to the circumstances of the case, and determine, subject to any principles of law which may be ascertained by the cases, whether the contract is or is not beneficial.

Smith v. Gega, 2023 ONSC 4723 (CanLII)

[2] For the reasons that follow, I find that Smith was not a tenant as defined in 2(1) of the RTA, and that she therefore is unable to access the protection provided to tenants in section 51(1) of the RTA at the time that the Condominium Declaration was prepared on January 27, 2011. The December 12, 2022 Eviction Order is therefore valid, and Smith’s appeal is dismissed.

BACKGROUND

[3] The facts in this case are not in dispute. Smith is a 59 year old woman who has been residing at 3360 The Credit Woodlands, Unit 18, Mississauga, Ontario since 1964. Smith grew up at this property, where she lived continuously with her parents until their passing. After her parents died (her father in 2015 and her mother in 2018), Smith continued to reside as a tenant at the property, but no new lease was ever signed. There is no issue that Smith was considered to be a tenant of the property at the time that she was served with the Eviction Notice in December of 2022.

[4] Between 1964 and 1978, various fixed term leases were entered into between the landlord and Smith’s parents. The last time a lease was signed with respect to the property was in 1978, with an expiry date of July 31, 1979. In that lease, Smith’s parents are listed as the “tenants” and Smith is listed as an “occupant”.

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[30] In particular, it is noteworthy that the Act does specifically contemplate the rights of a tenant’s spouse upon their death. Subsection 3 (1) of the RTA states the following:

In particular, it is noteworthy that the Act does specifically contemplate the rights of a tenant’s spouse upon their death. Subsection 3 (1) of the RTA states the following: 3(1) If a tenant of a rental unit dies and the rental unit is the principal residence of the spouse of that tenant, the spouse is included in the definition of “tenant” in subsection 2 (1) of the Act unless the spouse vacates the unit within the 30-day period described in subsection 91 (1) of the Act. (emphasis added)

[31] The legislature has therefore taken very specific steps to ensure that a spouse of a tenant has the right to remain a tenant in the rental location after the main tenant has died. If the legislature had intended for children to also be included in the definition of tenant, section 3(1) would have been a natural place to include protections for children of tenants along with the spouse of a tenant. This was not done.

[32] Although I recognize the need to apply a fair, large and liberal construction and interpretation of the Act, I cannot ignore the true intent, meaning and spirit of the Act. Although the words “tenant’s heirs” do appear under the definition of tenant in section 2(1) of the Act, interpreting the phrase “tenant’s heirs” to include children living at the same time as the tenant does not fit with section 3(1) of the Act. The fact that section 3(1) is silent about children being included in the definition of tenant suggests that the legislature did not intend for children to be considered tenants in section 2(1) notwithstanding the use of the phrase “tenant’s heirs” in the definition of “tenant”.