Evicting a Superintendent

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Langer Properties v. Langer, [1998] O.J. No. 515

3. The situation is entirely different from that in the Rondinelli case that the appellant relies upon. There, the landlord made an arrangement with a tenant who had occupied premises other than as a caretaker whereby that tenant would perform caretaking operations upon the property in return for a reduction in rent. That tenant had the security of the provisions of the Landlord and Tenant Act at the time that the arrangement was made with him on an ad hoc basis by the landlord

4 In this case, as I have mentioned, the appellant was a manager of other premises at the time he took occupancy at 66 Lowther and became a manager of 66 Lowther in the ordinary sense of the word as soon as the other apartments were occupied. In our judgment, however, he was a manager from the outset in that he was taking care of a property that was being renovated to accommodate residential occupancy.

5 In these circumstances, in our opinion, the landlord was entitled to terminate the tenancy agreement, such as it was, with David Langer under the provisions of section 115(1) of the Landlord and Tenant Act. Accordingly the appeal is dismissed.

Maystar Holdings v. Isufaj, (2000)

10. On July 4, 2000, Mr. Isufaj was injured while performing the duties of his employment, specifically suffering an injury to his back and to his foot. He immediately reported this injury to the on-site assistant manager, Detty Jurca. The Landlord did not report this injury to the Workplace Safety and Injury Board (WSIB), and Mrs. Jurca told Mr. Isufaj to seek medical attention, which he did. Mr. Isufaj received initial medical advice to rest for two days, but this was rejected by Mr. Kasmani, who insisted that he continue to perform his duties, failing which he would be out of a job. Mr. Isufaj, a recent immigrant to Canada, was not aware of the availability of a claim under workers' compensation legislation, and he continued to work for several weeks, notwithstanding his continuing injuries.

12. On August 21, 2000, Mr. Isufaj advised his superiors that he was unable to perform certain of his duties, specifically the taking out of the garbage. The Landlord terminated his employment verbally that very day, and this was confirmed by a letter of the same date, requesting that the rental unit be vacated within two weeks.

14 The Tribunal has no jurisdiction to determine the propriety of the Tenant's dismissal from his employment. The parties agreed and the evidence confirmed that the Tenant's employment with the Tribunal was terminated on August 21, 2000. As to whether this was a wrongful dismissal or not is a matter which is beyond the jurisdiction of the Tribunal. Section 68 of the Act is unequivocal, that the tenancy terminates when the employment terminates, and the Tenant shall move out within one week thereafter. However, I cannot accept the argument of the Landlord's representative that section 68 supersedes section 84 and that, in the case of an Application relating to superintendent's premises, the Tribunal has no discretion to consider the relief from eviction provisions of section 84. The jurisdiction given to the Tribunal by sub-section 84(1) relates to "an application for an order evicting a tenant or subtenant", and does not distinguish among different types of rental units nor make any exception for rental units which are occupied as superintendent's premises. Moreover, sub-section 84(1) is clear that this jurisdiction conferred on the Tribunal exists "despite any other provision of this Act or the tenancy agreement." There exists on the facts of this case, as set out above, an obligation to consider the relief from eviction provisions of section 84

15 When Mr. Isufaj refused to take out the garbage on August 21, 2000, this constituted a work refusal, pursuant to the Occupational Health and Safety Act. This, coupled with the letter from Dr. Siddiq of August 18, 2000, was a clear indication to the Landlord that Mr. Isufaj was attempting to enforce his legal rights. This was the reason, based on the evidence before me, that he was terminated and that this Application was brought by the Landlord.

16 Therefore, an Order should issue dismissing the Application.

18 However, since the Application is being dismissed, I have no discretion to order the Tenant to pay rent or compensation to the Landlord. There is no jurisdiction in the Tribunal on a Landlord's Application to "make any other order that it considers appropriate." Such discretion only exists on a Tenant's Application, as prescribed by sections 34 and 35 of the Act. The discretion set out in sub-section 190(1), that the Tribunal may include in an order whatever conditions it considers fair in the circumstances" does not confer as wide a discretion on the Tribunal as sections 34 and 35, since the operative word "conditions" presupposes that a term may be included in an order as a condition of some other term being ordered or not ordered. In a case, as here, where the Application it is being dismissed, not due to the exercise of discretion but because it is statutorily mandatory to do so (pursuant to sub-section 84(2)(c)), the inclusion of a condition in the Order is not available to the Tribunal.

Parkette Place Apartments (c.o.b. Investors Property Services Ltd.) v. MacIntosh, [2006] O.R.H.T.D. No. 55

1. The Landlord purchased the residential complex on July 20, 1998. At that time the Tenant was the Superintendent of the building. The Tenant signed an affidavit on July 23, 1998. That affidavit set out the duties of the Tenant as Superintendent as well as a clause that the Tenant would receive a monthly compensation plus free rent for apartment 109 in consideration for the performance of the services set out as duties of the Superintendent in that affidavit.

2. Mr. C. Angona gave evidence that he has designated unit 109 as the Superintendents unit. The reason this was done is because the unit is close to all of the building services and because of the concerns of security risks. Mr. Angona also gave evidence that the Tenant submitted a letter of resignation to him on December 30, 2005. That letter indicated the Tenant would be retiring on April 1, 2006. Mr. Angona also gave evidence that there were letters back and forth between himself and the Tenant with regard to her retirement. In one (1) of those letters, dated January 13, 2006, Mr. Angona advised the Tenant that her services as Superintendent would no longer be required effective immediately. The Letter advised the Tenant that she must move out of the unit by March 31, 2006. This letter also advises the Tenant to surrender all keys, ledgers, log books or any other documentation pertaining to the residential complex.

6. The Tenant gave evidence that she has lived in the complex for thirty-four (34) years and has lived in unit 109 for thirty (30) of those years. The Tenant also gave evidence that she has been Superintendent for twenty (20) years. The Tenant also gave evidence that she is the first Superintendent to live in unit 109. Prior to her becoming Superintendent several different units were used as the Superintendent's unit. The Tenant also gave evidence that she was never advised by the present owner or any previous owner that unit 109 was designated as the Superintendent unit. The Tenant also gave evidence that the previous owners advised her she could remain in unit 109 even after she was no longer the Superintendent. The Tenant did not provide any documented proof to substantiate this statement. Several documents provided by the Tenant do substantiate her statement that previous Superintendents have lived in other units. All of these documents are from the time before the present owner took possession of the complex.

7. It is determined that:

1. The Landlord terminated the employment of the Tenant on January 13, 2006. The Tenant has not vacated the Superintendent's premises and more than one week has passed since their employment was terminated.

2. I find that the case law provided by the Tenant is not relevant to this matter. In the case provided, the Tenant was a part time caretaker who lived in the building where he worked. In the case provided the set up of the complex was that the caretaker may or may not live in the complex. The caretaker was provided with a salary and reduced rent based on the work that was completed. In the case provided the Court ruled that the section of the legislation that deals with the caretaker's unit is specifically designed to deal with the unit of a person that is engaged as a fulltime caretaker and as part of the operations of the complex. In the case provided this was not the case and the Court dismissed the Landlord's claim that the part time caretaker was subject to the legislation relating to the Superintendents unit. The Court held that in the case provided Mr. Cain was a Tenant firstly and a caretaker secondly. In the matter before me it is clear the Tenant was the Superintendent and not a Tenant.

3. Based on the evidence before me I find that the Landlord had an agreement with the Tenant that was signed on July 23, 1998 allowing the Tenant to remain in the unit as long as she was the Superintendent. I find that this unit has been designated as a Superintendents unit by the Landlord.

Onucki v. Fudge (Ont. Div. Ct.), [1990] O.J. No. 2175

COO J. (orally):— The trial judge found that the provisions of s. 115 of the Landlord and Tenant Act, applied to the apartment occupied by the appellant, obviously by reason of the testimony of the landlord/respondent as to the circumstances in which the appellant came into occupation of apartment 101 in the landlord's building.

The evidence accepted by the trial judge certainly supported the conclusion that the apartment was residential premises used for residential purposes by the appellant, employed as a superintendent under the provisions of s. 81(a) of the Act. It matters not whether the job which the appellant assumed for the respondent was full-time or not. There was certainly sufficient evidence to support this conclusion, and that the appellant continued to be to the time of termination of the relationship, the superintendent of the building.

Whether or not sufficient notice of termination of employment was given to the erst while superintendent is a matter for another forum. It is clear that the employment of the appellant was terminated, and that is all that is required under the provisions of s. 115. In our view, the approach adopted by the Divisional Court in Re Rio Algom Ltd. and Turcotte (1978), 20 O.R. (2d) 769 at 771 should be followed.

There is no evidence as to whether the landlord deposited the appellant's certified cheques for the proper rent after termination and, in any event, the provisions of s. 112 would apply here. There is no evidence from which the conclusion could reasonably be reached that by agreement there had been a new tenancy created by acceptance by the landlord of the appellant's cheques.

We see no merit in the suggestion which was made in the material although it was not pursued in argument that the appellant was by the trial judge deprived of the opportunity either to cross-examine or to introduce evidence on any relevant and significant issues.

For oral reasons given the appeal is dismissed. No costs.

Rio Algom Ltd. and Turcotte, 20 O.R. (2d) 769

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SOUTHEY, J.:— The respondent was hired by the appellant, Rio Algom Limited, on February 23, 1977, as a shaftman. In that capacity, his work took him underground. On March 15, 1977, he signed a lease for the occupation of certain company-owned premises in Elliot Lake. it is common ground that those premises are leased by the company to employees only, as a general rule, although the respondent, who appeared before us in person, said there were some units presently occupied by non-employees. In any event, it is clear from the evidence that the respondent rented the premises knowing that he was only entitled to do so as an employee and could retain the premises only as long as he was an employee.

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On March 23, 1977, he had a conversation with one of his supervisors at Rio Algom named Ken Doyle. Mr. Doyle is described in the evidence as the underground supervisor and, whatever may be the correct designation of his office, Mr. Turcotte described him as the highest supervisor at the mine at the time. On that day, Mr. Doyle informed Mr. Turcotte that he had silicosis. According to Mr. Turcotte, Mr. Doyle went on to say, calling the respondent by the initials of his first name, Jean Paul, "J. P., don't worry about it. I have that problem myself, so has your friend", referring to another fellow working with Mr. Turcotte, named Marcel Pilotte. "Marcel has that, too. We both receive a pension for it. Don't worry about it, J. P., you still have a job with us."

The evidence of the respondent, which was accepted by the learned District Judge, was that the respondent, acting in reliance upon the promise of Mr. Doyle that he would be able to retain a position with Rio Algom, notwithstanding his silicosis, took steps shortly after this conversation to have his family give notice to vacate the premises they were occupying in Sudbury. In due course, he moved them into the premises at Elliot Lake that he was leasing from the appellant. The family moved in on April 16th. On April 18th, the respondent was dismissed from Rio Algom. He has been told that the reason for the dismissal was that he would be unable to work underground again, because of his silicosis.

At the hearing before the learned District Judge in Sault Ste. Marie, the Judge found, in these proceedings by the appellant for a writ of possession of the leased premises, that the appellant would have been otherwise entitled to a writ of possession, if the appellant fell within the provisions of s. 103g(3)(d) of the Landlord and Tenant Act, R.S.O. 1970, c. 236, as amended [1975 (2nd Sess.), c. 13, s. 3]. That subsection provides that one of the circumstances in which a Judge hearing an application for possession by a landlord is not prohibited from granting a writ of possession is, if:

(d) the tenant was an employee of an employer who provided the tenant with residential premises during his employment and his employment has terminated;

The learned Judge held that the appellant would have fallen within this subsection, but held the appellant could not rely on it because it was estopped from so doing by the promise made by Mr. Doyle to the respondent, as aforesaid. Because of that estoppel, in the view of the learned District Judge, the appellant was prevented from taking a position that was inconsistent with the promise of Mr. Doyle that the respondent could have a job with the appellant company.

We have the deepest sympathy for the respondent with his serious medical problem. We are all of the view that we would not reverse the decision of the learned District Judge on the ground that the facts did not give rise to an estoppel. We accept for the purposes of our judgment, without so deciding, that there were grounds for an estoppel, but that estoppel, in our judgment, does not prevent the appellant from taking the benefit of s. 103g(3)(d).

The estoppel, in our view, could not have put the employee in any better position that he would have been in, if he had had a subsisting contract of employment for an indefinite term with his employer at the date of his discharge. The argument of counsel for the appellant is that cl. (d) applies when an employment has been terminated, whether or not such termination was wrongful in the sense that it constituted a breach of contract. He submits that if the termination was wrongful, then the employee, in an action for wrongful dismissal, would be able to recover as part of his damages any loss suffered by him as a result of having to give up the residential premises provided by the employer. In our view, this submission must prevail. If it were not so, it would mean that an employer providing premises for occupation by his employees in cases where such occupation was necessary for the discharge of the duties of the employees, would be unable to obtain possession of those premises upon dismissing an employee whenever the employee claimed that his dismissal was in breach of contract. This would mean, for example, that the owner of an apartment building would be unable to obtain possession of the supervisor's suite upon discharging a supervisor if the supervisor took the position that his employment had been wrongfully terminated.

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In our view, s. 103g(3)(d) applies whenever employment has been terminated, whether wrongfully or not, and that the proper redress where an employee's employment has been wrongfully terminated is by way of damages in an action for wrongful dismissal.

For these reasons, the appeal will be allowed and the order of the learned District Judge set aside

In the circumstances that have given rise to this appeal, we are of the view that the respondent ought to have at least one month before being required to vacate the premises in question. Section 107(2)(b) [rep. & sub. 1975 (2nd Sess.), c. 13, s. 7(2) ] of the Landlord and Tenant Act, empowers a Judge of first instance to order that the enforcement of the writ of possession be postponed for a period not exceeding one week. We have been assured by counsel for the appellant that the appellant will not enforce a writ of possession before the elapse of one month from today's date. With that assurance, we shall simply provide in our order that in place of the order of the learned District Judge there be an order directing that a writ of possession issue.

Rondinelli v. Cain, [1989] O.J. No. 235

1. Mr. Cain was a tenant under a tenancy agreement with the prior owner of an apartment at 117 Godfrey Dr. in London. The prior owner then asked if he would take on the caretaker's responsibilities. He agreed and as a result he was given reduced rent. Mr. and Mrs. Rondinelli then purchased the building. It is a 12-unit building. They became dissatisfied with Cain's performance of the caretaker's duties and fired him. This was on November 6, 1988. He was given one week to vacate but failed to do so. The landlord has now brought an application for vacant possession.

2. The issue in this case is whether the normal termination provisions for residential tenancies apply or whether the summary termination provisions that relate to caretaker's premises apply.

3. At the hearing I said that Mr. Cain's rights were those of a tenant as opposed to those of a caretaker with the result that the summary termination caretaker provisions of the Landlord and Tenant Act, R.S.O. 1980, c. 232, were not available to the landlord. I gave very brief reasons at that time and subsequently was asked by counsel to give some written reasons. I now do so.

4. Section 115 of the Landlord and Tenant Act reads as follows:

115(1) Notwithstanding anything in this Part, where a landlord has entered into a tenancy agreement in respect of caretaker's premises, unless otherwise agreed, the tenancy of the tenant is terminated on the day on which the employment of the tenant is terminated and the tenant shall within one week thereafter vacate the caretaker's premises.

(2) If the tenant fails to vacate the premises as set out in subsection (1), the landlord may forthwith make application under section 113.

5. I think that there are several reasons why s. 115 does not apply in this case. Mr. Cain did not commence his tenancy as a caretaker but assumed these duties later on. It seems to me that the wording of s. 115 requires a simultaneous occurrence that when the tenancy agreement is entered into it is in relation to the caretaker's premises.

6. As I understood the facts, the apartment in question was and is not specifically designed as a caretaker's unit. There is no apartment so designated. At another time in the history of this building the tenant who was responsible for the caretaking duties occupied a different apartment.

7. As I understand the set-up in this building, the caretaker may or may not live in the building and when a tenant does the caretaker's work it is on a part-time basis.

8. It is my opinion that s. 115 is meant to deal with situations where a caretaker's apartment is specifically set up as part of the building and as part of the operations of the building as is common in larger buildings with full-time on-site caretaking. In such cases the specific and primary purpose of entering into a tenancy agreement is the provision of caretaker's services and the premises are specifically those of the caretaker. This is not the case here. As I mentioned, the caretaker and the caretaker's premises were really coincidental and ad hoc.

9. I am of the view that Mr. Cain was a tenant firstly as a straight residential tenant and only secondly as a caretaker. He is entitled to the rights of a tenant as opposed to the rights of a caretaker.

10. The landlord argues that there was a novation of the tenancy arrangement. Mr. Cain went from a straight tenant to a caretaker tenant. I do not think that is the case. His role of caretaker was quite secondary to his status as residential tenant.

11. For these reasons s. 115 does not apply and there will be no declaration that the tenancy agreement is terminated.

12. Application dismissed.

SOL-54818-14 (Re), 2015 CanLII 22724 (ON LTB)

1. DECI (the 'Landlord') applied to the Landlord and Tenant Board (“LTB”), pursuant to s. 93 of the Residential Tenancies Act, 2006 (“RTA”) for an Order to terminate the tenancy and evict PL (the 'Tenant') from a superintendent's premises because the Tenant's employment as superintendent has ended. The Landlord also claimed compensation for each day the Tenant remained in the unit after the termination date. (L2 Application)

20. EM, the owner of the corporate Landlord, testified that he hired the Tenant to act as a part-time building superintendent in late 2012. He needed a live-in superintendent mainly to do repairs in the three-storey, eleven unit building. EM testified that he had never employed a building superintendent before, and that the Tenant was assigned a specific rental unit designated for his position. The rent, paid by work in lieu of payment, was $675.00. No actual payments, including first and last months’ rents, ever changed hands.

21. EM terminated the Tenant’s employment based on performance issues on November 19, 2014. He did so by letter. However, the Tenant did not vacate within seven days, and he remains in possession.

23. The Tenant took the position that he was not a terminated superintendent. Instead, he maintained that he was a tenant whose superintendent work was terminated. He also took the position that he was wrongfully dismissed for agreeing to testify for another tenant in another Board proceeding, and so he remains employed as a part-time superintendent.

24. As I stated at the hearing, the employment dispute between the parties is an issue for another forum. Issues of wrongful termination of employment are irrelevant for the ground of eviction (See Onucki v Fudge [1990] O.J. No. 2175 (Ont. Div. Ct.), which was applied in TSL-24989-12 (Re), 2012 CanLII 27871 (ON LTB)). My role is simply to determine whether the Tenant was employed as a building superintendent, whether his employment was terminated, and whether he has failed to vacate the superintendent’s premises.

25. On each of these issues, I am of the view that the Landlord has met its burden of proof. I am satisfied on a balance of probabilities, based on EM’s testimony, that the Tenant was employed as a building superintendent, that he continued to occupy the rental unit designated for a building superintendent to the date of the hearing, and that his employment has been terminated.

26. In reaching my conclusions, I note that EM’s testimony was clear and relevant to the application. In contrast, the Tenant’s testimony was evasive, argumentative, and primarily fueled by anger over his dismissal.

27. Based on my conclusions, I will terminate the tenancy as of April 24, 2015, pursuant to section 94 of the RTA. I am mindful of the Tenant’s circumstances, including his financial distress and lack of alternate housing that he raised at the hearing. However, given that the tenant’s employment ended five months ago, and that he has had ample time to find another residence, it would be unfair to delay termination.

Re Stewart-Kerr Properties Ltd. and Fitzgerald, 1979 CanLII 1818 (ON SC)

BLAIR, CO. CT. J.:-- This is an application pursuant to s. 106 [re-enacted 1972, c. 123, s. 3; rep. & sub. 1975 (2nd Sess.), c. 13, s. 5(1)], of the Landlord and Tenant Act, R.S.O. 1970, c. 236. The respondent first became a tenant of the landlord in September, 1977, when he rented apt. No. 6 in the premises at 358 Kerr St., Oakville.

On February 15, 1978, while he was still occupying that apartment, he entered into an agreement with the landlord to act as superintendent of the building at a salary of $300 per month. The rent for the apartment occupied by him was to be paid out of that amount. The duties of the respondent in this respect included cleaning and maintenance.

The respondent entered upon and continued performance of those duties. On April 1, 1978, he and his common law wife moved to apt. No. 18 at a rental of $190 per month, and on July 1, 1978, to apt. No. 12 at a rental of $191 per month. These moves were made necessary by the fact that the respondent and his wife had a child.

On March 30, 1978, at 8:00 p.m., the landlord handed to the respondent a notice bearing that date, which reads as follows:

TAKE NOTICE that your employment with Stewart-Kerr Properties Limited is hereby terminated. You are further demanded to immediately deliver up possession of Apt. #12, 358 Kerr Street, Oakville, Ontario, in which you are presently residing.

At the same time when handing the notice to the respondent, Mr. Cheney, president of the applicant corporation, gave the respondent a cheque for his salary for the month of March less the usual deductions and the rent for that month. In addition he gave the respondent an amount representing salary for a period of two weeks and vacation pay.

On March 31, 1979, which was the day following the evening on which the notice had been handed to him the respondent sent to the landlord by registered mail a bank money order in the amount of $382 representing the rent for the months of April and May, 1979. None of this money has been returned by the landlord. The respondent has continued in occupation of the apartment.

A notice of this application, which is undated, was served upon the respondent, returnable April 19, 1979. There is an affidavit of service by counsel for the applicant that it was served on April 16, 1979, but it was not put in evidence and I must find from evidence given by the respondent that the notice was in fact served on April 17, 1979. On April 19, 1979, the respondent appeared and no question being raised as to short notice, the case was set down for hearing on May 17, 1979.

By the notice of application the landlord claims a declaration that the tenancy agreement has been terminated and a writ of possession.

[...]

There are other grounds upon which, in my opinion, the application should not be allowed. Firstly, the acceptance and retention by the landlord of two months' rent paid in advance after March 30, 1979, makes it possible to infer the creation of a new tenancy agreement. It is difficult to understand on any other basis why the landlord would accept the money order sent by the respondent, especially so in view of s-s. (3) of s. 106b which forbids the receipt by the landlord of rent or compensation for the period of one week in which the tenant is allowed by the section to remain in the premises. If it were the landlord's firm intention to claim immediate possession or even possession after the expiration of one week, why retain rent for a period of two months? The inference of an agreement to continue or renew the tenancy is supported further by the circumstance, referred to hereafter, that the apartment was not needed by the landlord. The fact that subsequently the landlord brought this application means only that he changed his mind as to renewal or extension of the tenancy. It seems to me that the evidence as to payment and acceptance of the rent required at least some evidence from the landlord in reply to the effect that no such inference is justified. No such evidence in reply was adduced on behalf of the applicant. It should be added that s. 105(2) is not applicable in the circumstances for the reason that no notice of termination of the tenancy was given within the meaning of s. 99 and it must be clear, I think, that it is to such a notice s. 105(2) refers.

I have distinguished the case of Re Public Utilities Com'n of Town of Mitchell et al., supra, but if the principle there expounded be applicable, then the implication of a new tenancy agreement arising from the acceptance and retention of rent by the applicant is beyond question, in my opinion.

Secondly, as noted previously, the evidence shows that in this case the landlord has no intention of replacing the respondent in the position of superintendent or caretaker. It is clear, therefore, that the apartment is not needed for that purpose and in any event there are other vacant apartments in the building. As far as the evidence reveals, therefore, it cannot be considered unfair to the landlord that the application for a writ of possession be refused in this instance. It is entirely reasonable to conclude that the intention of the Legislature in enacting s. 106b was to facilitate the provision of a residence for a new caretaker where the employment of the former caretaker has been terminated, and although that presumed intention should not be used to defeat the right of the landlord within the plain meaning of the statute, I think it is proper to take it into consideration in the exercise of discretion pursuant to s. 107(2) [rep. & sub. ibid., s. 7(2)]. In the circumstances here the obvious purpose of the legislation is not thwarted by disallowing the application.

It is further arguable that receipt by the landlord of rent or compensation for the period of one week which by s. 106b(3) is forbidden, constitutes a breach of the landlord's responsibilities within the meaning of s. 107(3) [enacted 1972, c. 123, s. 4; rep. & sub. 1975 (2nd Sess.), c. 13, s. 7(2)], making the refusal of the application mandatory but I do not rest my conclusion on that basis.

For these reasons the application is dismissed. The respondent was not represented by counsel. There will be no order as to costs.

Application dismissed.

TEL-16694 (Re), 2008 CanLII 82425 (ON LTB)

In February 2006 the parties entered into a tenancy agreement. It is acknowledged that the Tenants began as ordinary tenants. Around the same time that the tenancy began, the Landlord was in search of superintendent for the residential complex. Tenant [Tenant(1)’s name removed] approached the Landlord and expressed an interest in the position. The parties executed a “Superintendent Contract” on March 7, 2006 with an effective date of March 20, 2006. The superintendent’s responsibilities were set out in detail in the Contract and included cleaning the common areas, putting out the garbage for collection, interior and exterior maintenance, repairs, painting, collecting rent, and showing units to prospective tenants.

It is common ground that [Tenant(1)’s name removed] was employed as the full time superintendent of buildings [Building number removed] and [Address removed], beginning March 20, 2006. In consideration for his employment, [Tenant(1)’s name removed] was paid $1,200.00 per month. In addition, the Tenants were not charged for rent or utilities. It was also noted that the Landlord refunded the last month’s rent deposit to the Tenants upon the start of [Tenant(1)’s name removed]’s engagement.

Analysis

By executing the Annex, did parties alter the fundamental nature of their relationship after January 31, 2007?

The Landlord characterized the Annex as a renegotiation of the original terms of employment with the superintendent. In short, the Landlord argued that [Tenant(1)’s name removed] continued to be a superintendent with reduced responsibilities equivalent to those of a janitor. The Landlord also pointed to the fact that, after January 31, 2007, the Tenants continued to occupy the “service apartment” historically occupied by the superintendent.

The Tenants on the other hand characterized the Annex as a new tenancy agreement imposed on them by the Landlord with very little room for negotiation other then the subsequent inclusion of free utilities and parking. [Tenant(1)’s name removed]’s evidence was that he was required to sign the Annex in order to continue living in the unit. His preference, at the time, was to continue as the superintendent with the accompanying salary. [Tenant(1)’s name removed]’s evidence was also that the Landlord’s August 18, 2008 “termination letter” was very unexpected.

The fact that the Tenants continued to occupy a unit historically occupied by the superintendent is one factor to consider but it is not determinative of the issue. Section 2 of the Act provides the following definition of a superintendent’s premises:

“superintendent’s premises” means a rental unit used by a person employed as a janitor, manager, security guard or superintendent and located in the residential complex with respect to which the person is so employed; (my underlining)

There is no requirement under the Act that a superintendent’s premises be a designated unit. Virtually any rental unit in the residential complex could meet the definition of a superintendent’s premises.

The term “superintendent” is not defined in the Act. However, I am of the view that there can be a whole host of duties and responsibilities that could qualify a person as being a superintendent. Certainly, performing janitorial work falls well within the scope of a superintendent’s traditional duties.

Conversely, “rent” as defined by the Act may take the form of any valuable consideration given by a tenant and is not restricted to monetary payments. I accept the notion that work performed by a tenant can constitute adequate consideration for the right to occupy a rental unit.

Counsel for the Landlord argued that the mere fact that [Tenant(1)’s name removed] is referred to as a “tenant” in the Annex does not alter the true substance of the relationship between the parties so as to make s.93 of the Act inapplicable. I do not accept this argument. The Landlord in this matter is neither small scale nor unsophisticated. Both the Superintendent Contract and the Annex were prepared by the Landlord. The terms used in the agreements must be given their ordinary meaning. Moreover, any ambiguity in the construction of the Annex must be construed against its author. In this case there is in fact very little ambiguity in the wording of the Annex. The Superintendent’s Contract is terminated. [Tenant(1)’s name removed] is now a Tenant and will cease to receive a salary. The Tenant is permitted to occupy the rental unit in exchange for certain specified duties around the residential complex. As [Tenant(1)’s name removed] is no longer “employed” by the Landlord, the rental unit no longer meets the definition of a superintendent’s premises.

Finally, it is noted that the Landlord in this matter took the additional step of publicly representing the fact that [Tenant(1)’s name removed] is no longer the superintendent. The intention here is clear.

Conclusion

The Landlord in this matter may have performance issues with the Tenant. However, this does not allow the Landlord to avail itself of the express eviction provisions afforded by sections 93 and 94 of the Act simply because it is more convenient to do so. If the Landlord wishes to assert rent arrears, there are other avenues at its disposal.

Valdeek Ltd. v. Glisovic, [1988] O.J. No. 3135

1. In this matter, the landlord seeks a declaration that the tenancy agreement is terminated and asks for a writ of possession. The basis of the application is Section 113 of The Landlord and Tenant Act relative to and I quote, "caretaker's premises".

2. The landlord relies on an agreement dated the 16th day of July, 1987. Exhibit 9 is a photocopy of an agreement entered into in evidence during the examination of the tenant. It shows them living in apartment number 18 and paying $386.87 a month for rent and hydro.

12. There is a conflict in the evidence as to the basis upon which there were to be occupation of the premises. Mr. Glisovic says that his wife having been fired as superintendent from an adjoining apartment building and having been forced to vacate their premises by reason thereof, he told Mr. Ingel that the family wanted an apartment as tenants and not involved with any connection to being in a superintendent or caretaker arrangement.

13. Mr. Ingel was not questioned specifically on this point, but relies on the wording of the contract and the letter of July 23, 1987, which is Exhibit 6, which enclosed a copy of the contract and states in part. "occupying apartment number 18 from August 1, 1987, as part of the contract duly signed on the 16th of July, 1987, which you will be permitted to occupy with your child as long as you are superintendent of this complex".

18. I find on the evidence that this was a condition upon which the Glisovics wore going to go into occupancy of the apartment number 18, as far as they were concerned, and that the agreement, Exhibits 2 and 9 do not accurately set out the agreement made between the parties. I say that for the above reasons and additionally, because the agreement in its terms is in conflict as to full and part-time and I find that the Glisovics were under the impression that they were dealing with a part-time situation.

19. As such, the Notice not having been given as per sections 98 and 99 of The Landlord and Tenant Act, the landlord's application cannot succeed.

20. If I am wrong in this assessment of it, I go on to consider the further aspects. The evidence is that neither apartment 18 or 7 were "caretaker's premises" before occupancy by the Glisovics and that apartment 18 is not now so occupied, although it does have an occupant and that the landlord is proposing to rent out apartment number 7 if he gets vacan possession to other than a caretaker or superintendent.

21. Then, too, a landlord is prohibited from charging rent for the one week envisaged in Section 115(3) of The Landlord and Tenant Act# and the evidence clearly shows that the Glisovics have paid rent and the landlord has accepted the rent without giving any credit for that week period from the date of notice for the months of August, September, October and November.

22. The fact that the landlord wrote without prejudice on the cheque does not in my opinion overcome the prohibition of charging or receiving rent for that one week. As such, the landlord would be in breach of Section 115(3) of The Landlord and Tenant Act and Section 121(3)(a) would apply and that would be another ground for dismissing the landlord's application.

23. In any event, Section 121(2)(a) permits a judicial discretion to refuse a writ of possession. I am of the view that this applies to the tenancy agreement even of caretaker's premises. Here the vacant possession is not sought to provide premises for a new caretaker.

24. The Glisovics I found honestly felt that they had the premises as tenants and were justified in so believing. They have always paid rent on time, even pending this proceeding.

25. The landlord is really not losing anything by them remaining as tenants and, according, even if I am in error in rejecting the landlord's application as previously set out, I would exercise my discretion and refuse the landlord's application as I do not feel, in all the circumstances, that it would be unfair to do so. Consequently, the landlord's application is dismissed.

26. In the circumstances, the dismissal will be without costs. For oral reasons given this day, the landlord's application is dismissed without costs.