Illegal Rooming House - Re: Tenant

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-05-02
CLNP Page ID:	1033
Page Categories:	[Illegal Act & Impairment of Safety (LTB)], [Interference of Reasonable Enjoyment (LTB)], [Contract Law, Leases, & Sub-Letting (LTB)], [RTA Exempt Tenancies], [Section 61 (RTA)]
Citation:	Illegal Rooming House - Re: Tenant, CLNP 1033, <https://rvt.link/3v>, retrieved on 2024-05-02
Editor:	Sharvey
Last Updated:	2023/02/15

Davies v. Syed, 2020 ONSC 5732

[34] The Court of Appeal in Fraser dealt with a motion where the plaintiffs were a group of neighbours who lived near an illegal rooming house in Ottawa. The plaintiffs sought injunctive relief against the landlords restraining them from operating the rooming house. The landlords had been convicted of operating a rooming house without a license and in fact, consented to an order granting the injunction. The injunction order provided that no steps would be taken to enforce the order until notice had been given to the tenants or for the orderly sale of the property. An application was brought by the landlords to the Ontario Rental Housing Tribunal for an order terminating the tenancies. The tribunal refused the landlords’ application, and when faced with the continued operation of the rooming house the plaintiffs sought an order of the Superior Court on notice to the tenants requiring that the tenants vacate the rooming house. An appeal was brought to the Court of Appeal on the basis that the Superior Court lacked jurisdiction to make the order. The appeal was allowed.

[40] On the facts of this case, there is no order of the LTB evicting any of the occupants of the various residences that are described in the Statement of Claim. I am satisfied that s. 168(2) of the Act provides exclusive jurisdiction for the granting of an eviction order to the LTB. This has been made clear by the Court of Appeal in Fraser.

[41] What distinguishes this case, however, in my view, is the fact that there are numerous orders made by the various fire protection services as well as zoning notices that, in essence, declare that at least some if not all of the residences are residential dwelling homes that have been converted into rooming houses. The unsuspecting occupants of the residences believe that they are renting rooms from Syed. Syed obtained lease agreements from the various plaintiffs as a result of a fraudulent misrepresentation that he would be occupying the residences as a single-family residential home occupied only by himself and his family. The evidence in my view is overwhelming, that Syed obtained the right to lease the various residences at issue in this lawsuit as a result of a fraudulent misrepresentation that renders such lease agreements void ab initio.

[44] My conclusion that the plaintiffs have standing to seek injunctive relief does not ignore the exclusive jurisdiction of the LTD. Rather, the Legislature chose not to limit the jurisdiction of this court by providing that s. 440 was superseded by the exclusive jurisdiction of the LTB. This issue was, in part, dealt with by Howden J in Neighbourhoods of Winfield Limited Partnership v. Death, 2008 CanL11 42428, where Howden J. granted an order under s. 440 of the Municipal Act restraining the respondent landlords from using their houses as multi-unit rentals, contrary to the municipal by-law which did not allow lodging houses containing more than two bedrooms for rent. The multi-unit rentals were occupied by groups of students as tenants.

[45] It is noteworthy that the decision of Howden J. in Winfield was upheld by the Court of Appeal (leave to appeal to the Supreme Court of Canada refused). The decision of the Court of Appeal was released within four years of its decision in Fraser. As noted by D.C. Shaw J. in Kenora (City) v. Eikre Holdings Ltd., 2018 ONSC 7635 at para. 66, “There was no suggestion in Neighbourhood of Winfields that the Residential Tenancies Act defeated the statutory jurisdiction of the Superior Court to make a restraining order under s. 440”.

[46] The Court of Appeal in Fraser makes clear that the Superior Court has broad jurisdiction to grant an injunction. In my view, such broad power coupled with the enforcement powers of s. 440 of the Municipal Act are such that this court should grant the plaintiffs who are “taxpayers” an injunctive remedy that is in no way inconsistent with the exclusive jurisdiction of the LTB.

[47] The occupants of the various residences described as the defendants John Doe 1 to John Doe 12 as well the defendants Syed, are ordered to comply with all outstanding orders from any fire protection service that are directed at the residences.

[48] The occupants of the various residences described as John Doe 1 to John Doe 12 as well as the defendant Syed, are further ordered to comply with all outstanding Municipal Notices requiring that the defendants conform with all zoning by-laws, including any by-law that requires the residences to be returned to the status of a single-family residence.

[49] The occupants of the various residences described as John Doe 1 to John Doe 12 and the defendant Syed, are further ordered in the absence of any Municipal Notice to comply with all municipal zoning by-laws that may govern the residences. Where such zoning by-law allows for a single-family residence, the defendants are ordered to cease and desist using any of the residences as a rooming house.

[50] The occupants of the residences described as John Doe 1 to John Doe 12 and the defendant Syed are to comply with the orders of this court within 7 days, failing which the plaintiffs may seek further relief from this court to enforce these orders.

Fraser v. Beach, 2005 CanLII 14309 (ON CA)

[1] The appellants are the residential tenants of an illegal rooming house in Ottawa. The respondents are neighbours who brought an action against the landlords seeking damages for nuisance and for an interim and final injunction restraining them from operating the rooming house. The defendants, who did not participate in the appeal, are the landlords of the rooming house and have been convicted of operating a rooming house without a licence and fined pursuant to a city by-law.

[2] The single legal issue in this appeal is whether the Superior Court of Justice has jurisdiction to order the eviction of the tenants, or whether the Ontario Rental Housing Tribunal has exclusive jurisdiction to do so.

[5] Faced with the continued operation of the rooming house, the neighbours returned to the Superior Court on notice to the tenants, and obtained an order dated December 16, 2003 requiring the tenants to vacate the rooming house on or before January 15, 2004.

[6] The tenants appeal the granting of that order on the basis the court lacked jurisdiction to make it.

[8] The court's jurisdiction, however, is not fixed. It has long been settled that the jurisdiction of a superior court may be limited by statute. In Board v. Board (1919), 1919 CanLII 546 (UK JCPC), 48 D.L.R. 13, [1919], W.W.R. 940 (P.C.), at p. 18 D.L.R., Viscount Haldane, in reviewing cases dating as far back as 1774, said that "nothing shall be intended to be out of the jurisdiction of a superior court, but that which specially appears to be so". In Michie Estate v. Toronto (City), 1967 CanLII 202 (ON SC), [1968] 1 O.R. 266, 66 D.L.R. (2d) 213 (H.C.J.), at p. 268 O.R., Stark J. wrote that "... the Supreme Court of Ontario has broad universal jurisdiction over all matters of substantive law unless the Legislature divests from this universal jurisdiction by legislation in unequivocal terms". Brooke J.A., speaking for this court in 80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., 1972 CanLII 535 (ON CA), [1972] 2 O.R. 280, 25 D.L.R. (3d) 386 (C.A.), stated at p. 282 O.R., "As a superior Court of general jurisdiction, the Supreme Court of Ontario has all the powers that are necessary to do justice between the parties. Except where provided specifically to the contrary, the Court's jurisdiction is unlimited and unrestricted in substantive law in civil matters."

[11] These definitions, which are clear, do not exclude an illegal rooming house from their application. Not only does the text of the Act provide no basis for holding otherwise, it would be inconsistent with the purpose of the Act to withhold the protections it provides from residents of the illegal residential units leaving them at the mercy of landlords. I conclude that the Act applies to the relationship between the landlords and the tenants in this case.

[13] The neighbours submit that the Superior Court's order that the tenants vacate the premises was simply the method of enforcing its earlier order restraining the landlords from operating the illegal rooming house. The earlier order is not attacked. They say it does not make sense to read the Tenant Protection Act as taking away the rights of governments and private persons simply because they are neither landlords nor tenants. They submit that the activities of residents of an illegal [page387] rooming house may affect the health and safety of neighbours, and that persons so affected must have a remedy. Likewise, a city must be able to enforce its by-laws. It cannot be the case, they say, that a landlord can continue to operate an illegal rooming house in flagrant contravention of the by-law while a city remains powerless to do anything about it. (In this case, the city is not a participant in the proceedings.)

[14] I do not accept these submissions. The following provisions of the Act are of central importance. Section 39(1) provides "A tenancy may be terminated only in accordance with this Act." These words could not be more unequivocal. Moreover, s. 41(b) provides: "A landlord shall not recover possession of a rental unit subject to a tenancy unless ... an order of the Tribunal evicting the tenant has authorized the possession." Section 157(2) provides "The Tribunal 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." Finally s. 2(1) provides that the Tenant Protection Act applies with respect to rental units in residential complexes "despite any other Act" and s. 2(4) specifies that if a provision of the Tenant Protection Act conflicts with a provision of another Act (other than the Human Rights Code, R.S.O. 1990, c. H.19), the provision of the Tenant Protecti on Act prevails.

[15] I am satisfied that the combined effect of these provisions is to oust the jurisdiction of the Superior Court to make an order requiring the tenants to vacate the premises. The statute clearly provides that only the Tribunal may make an order terminating a tenancy and evicting a tenant.

[17] First, it clearly remains within the Superior Court's jurisdiction to restrain behavior that constitutes a nuisance. In my view, a just and convenient remedy for behavior that creates a nuisance would be one that was directed to the behaviour of the perpetrators rather than their place of abode.

[18] Second, I do not agree that the landlord is unable to secure the tenants' eviction under the Act thus hindering the neighbours' application to enforce the May 13, 2002 order. The neighbours point out that the landlords' application to the Tribunal to evict the tenants was refused. The Tribunal's decision was a consequence of the wording of the landlords' application and the provision of the Act upon which they relied, s. 53(1)(c). Subsection 53(1)(c) permits a landlord to give notice of termination of a tenancy if the landlord [page388] requires possession of the rental unit to do repairs or renovations that are so extensive that a building permit and vacant possession are required. The landlords, while making reference to the Superior Court's injunction and their conviction for operating a rooming house without a licence, applied to evict the tenants in order to convert the premises "to larger self-contained apartments or to a single-family dwelling". Section 71 of the Act provid es that the Tribunal shall not make an order evicting a tenant pursuant to a landlord's application under s. 53, unless the landlord has obtained the necessary permits required to carry out the activity on which the notice of termination is based. The landlords, in this case, had not obtained the requisite building permits needed to convert the rooming house. The Tribunal considered itself bound by the statute to refuse the application they had brought.

[19] The consideration of the ambit and application of other provisions of the Act to which the landlord might resort is a matter for the Tribunal and not for this court. Likewise, whether the landlords have made conscientious and diligent efforts to comply with the May 13, 2002 order to cease operating a rooming house is a matter for the Superior Court on a proper motion.

Decision

[20] I would allow the appeal and set aside the Superior Court's order dated December 16, 2003 requiring the tenants to vacate the premises.

[21] Counsel for the parties indicate that neither side is seeking costs. Accordingly, I would make no order as to costs.

Appeal allowed.

TEL-87359-18-SA (Re), 2018 CanLII 111792 (ON LTB)

25. On March 21, 2018, the local municipality issued a Notice of Violation with respect to the illegal rooming house.

32. When the Landlords found out they were operating an illegal rooming house, what they should have done is serve the appropriate notice to terminate. In circumstances such as these most landlords serve an N5 alleging the illegal rooming house is substantially interfering with a lawful interest of the landlord because the municipality is threatening prosecution for the zoning infraction. Some landlords serve an N6 alleging the tenants are committing an illegal act by occupying an illegal rooming house.

34. Their letter of November 5, 2017 says the Tenant has to move out by December 5, 2017 because the police gave them 30 days to clear the basement. In other words, the Landlords falsely informed the Tenant he had to sign the N11 form. As the Tenant clearly did not realise that was untrue, he did not give informed or voluntary consent to terminate his tenancy. To refuse to set aside the eviction order in that situation would be fundamentally unfair.

35. I would also observe that it is not entirely clear that the Landlords are still in violation of the local zoning by-law. If they are then they have the option of serving the appropriate notice to terminate.

36. This order contains all of the reasons for the decision within it. No further reasons shall be issued.

It is ordered that:

1. Order TEL-87359-18 issued on January 10, 2018 is set aside.

2. The Landlord's application is dismissed.

SWL-99232-17 (Re), 2017 CanLII 28683 (ON LTB)

27. A Notice to End the Tenancy for Illegal Acts (Form N6) was served on the Tenants on January 11, 2017. It alleges the Tenants have tampered with the hydro meter, that three or four women who frequent the rental unit have been seen carrying illegal knives, and that the Tenants are operating an illegal rooming house business.

32. The evidence about an illegal rooming house was also detailed in the N5 section above, under the Overcrowding subheading. In that section, it is outlined that Landlord's witness D.W. testified that the Tenants had presented themselves as “landlords” to various social services agencies in order to get housing funds added to those clients’ social services benefits, and that the Tenants were presumably collecting “rent” from some of the people they allowed to stay in their rental unit.

33. With respect to the allegations in the N6 notice, I find that the Tenants have committed an illegal act in the rental unit by tampering with the hydro meter and by operating an illegal rooming house.

34. Section 61 of the Act sets out that a landlord may serve a notice of termination of the tenancy if the tenant commits an illegal act in the residential complex. While the term "illegal" is not defined in the Act, Interpretation Guideline 9 outlines that an illegal act would include a serious violation of a federal, provincial or municipal law.

35. The courts have determined that an illegal act will be serious if it has the potential to affect the character of the premises or to disturb the reasonable enjoyment of the landlord or other tenants (Samuel Property Management Ltd. v. Nicholson (2002), 2002 CanLII 45065 (ON CA), 61 O.R. (3d) 470 (C.A.), at paragraph 28, citing Swansea Village Co-operative v. Balcerzak (1988), 1988 CanLII 4844 (ON SC), 63 O.R. (2d) 741 at 745 (Div. Ct.)).

36. In this case, the Landlord has asserted that three separate aspects of the Tenants’ conduct should each be considered an illegal act: tampering with the hydro meter, carrying weapons and permitting others to carry weapons in the residential complex, and running an illegal rooming house business.

37. I find that tampering with the hydro meter is a serious illegal act because it endangered the safety of the residents of the rental unit and significantly affected the Landlord because she had to arrange and pay for an electrical inspection and reinstallation of the meter.

38. While I believe that Tenant H.D. had a machete in his possession in the rental unit, and that he brandished it at Landlord's witness D.W., I am not satisfied that this act was serious enough to warrant termination of the tenancy. I also find that the Tenants cannot be held responsible for the actions of a woman sleeping in the neighbours’ driveway.

39. The Tenants were operating an illegal rooming house in the rental unit by falsely holding themselves out as the Landlords of the rental unit and charging “rent” to occupy premises that the Tenants do not own. By doing so, the Tenants have committed an illegal act, which I find is serious because it has disturbed the Landlord’s reasonable enjoyment due to the complaints the Landlord received from the neighbours about the constant changeover of guests and occupants from the rental unit. In addition, I find that the character of the residential complex has been negatively affected by the Tenants allowing such a high number of people to come and go from the unit, as evidenced by the neighbours’ complaints.

TSL-90844-17 (Re), 2018 CanLII 42690 (ON LTB)

34. Based on the evidence adduced at the hearing, I find on balance of probabilities that the Tenant has committed an illegal act by renting out rooms in the complex for more than the monthly rent.

35. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), and find that it would not be unfair to grant relief from eviction subject to the condition(s) set out in this order pursuant to subsection 83(1)(a) and 204(1) of the Act. I am of the view that the Landlord knew or ought to have known that the Tenant was renting out the rooms and making a profit. I say this because there was evidence before me that on or about June 15, 2017 the Landlord knew that the Tenant would be renting out the rooms and this arrangement would allow the Tenant to “make few hundreds per month.” There was also evidence before me that the Landlord knew that the Tenant was renting out more than 5 rooms. In fact, the Landlord was giving the Tenant advice on how to advertise on kijji and not on craigslist and not to rent all the rooms at the same time. As well, there was evidence before me that the Landlord took steps to provide more beds for the rooms.

36. There was insufficient evidence before me to establish that the Tenant was operating an illegal rooming house. I say this because there was no notice of violation from the City that that this was an illegal rooming house. There was no dispute that the Tenant was renting out the rooms in the unit. However, a tenant is permitted to have roommates. The Landlord could have summoned the Inspector to provide evidence that the Tenant was operating an illegal rooming house.

37. The Landlord did not lead any evidence that the Tenant was in a physical altercation with another tenant. As such, this issue is dismissed on the Form N6 and N7.

Kenora (City) v. Eikre Holdings Ltd., 2018 ONSC 7635 (CanLII)

[1] The Corporation of the City of Kenora (the “City”) brings an application to close an illegal boarding house located on the second and third floors of 117 Main Street, Kenora, known as Lila’s Block (the “Property”).

[2] The Property is owned by the corporate respondent, Eikre Holdings Ltd. The individual respondents, Darryl Eikre and Phyllis Eikre, are the officers, directors and sole shareholders of Eikre holdings Ltd.

[3] The Northwest Community Legal Clinic (the “Clinic”) was granted leave to intervene in this application as a friend of the court.

[56] In Fraser, the application was brought by private citizens, neighbours of the illegal rooming house in Ottawa, who submitted that a Superior Court had jurisdiction, at common law, to terminate a tenancy and evict a tenant for creating a nuisance. The City of Ottawa did not participate in the proceedings. The decision in Fraser did not deal with the statutory jurisdiction of the City of Ottawa, under s. 447.1 of the Municipal Act, 2001, to make a closure order where activities or circumstances in or about the premises constituted a public nuisance.

[57] In the instant case, the City, in seeking to exercise its jurisdiction under s. 447.1 of the Municipal Act, 2001, does not request an order terminating the tenancies of the Property and allowing the landlord to recover possession. Rather, the City requests an order that the building be closed, directed not at the landlord/tenant relationship but in furtherance of the City’s duty to promote and protect the public interest.

[58] The purpose of s. 447.1 was made clear by the Minister responsible for introducing the proposed Municipal Act, 2001 to the Legislature, as per Hansard:

The proposed new act [Municipal Act, 2001] also includes measures to give municipalities more authority to make their communities safer. It will respond to municipal requests by enhancing municipal powers to deal with crack houses … and other problem properties as public nuisances by allowing municipalities to … ask the courts to close down those problem properties.

[59] The problem properties to which reference is made would necessarily include properties with residential tenants.

[66] In Neighbourhoods of Winfields, Howden J. of the Superior Court granted an order under s. 440 of the Municipal Act, restraining the respondent landlords from using their houses as multi-unit rentals contrary to the municipal by-law which did not allow lodging houses containing more than two bedrooms for rent. The multi-unit rentals were occupied by groups of students, as tenants. The decision was upheld by the Court of Appeal which found no error in the Justice Howden’s treatment of the relevant statutory provisions (including s. 440 of the Municipal Act, 2001) and case law. Leave to appeal to the Supreme Court of Canada was refused. The Court of Appeal’s decision was released four years after its decision in Fraser. There was no suggestion in Neighbourhoods of Winfields that the Residential Tenancies Act defeated the statutory jurisdiction of the Superior Court to make a restraining order under s. 440.

[79] Heeney J. held, at paras. 11-16 that both the lease and the relationship of landlord and tenant had been extinguished. He found that the Expropriations Act and the Residential Tenancies Act were not in conflict. Because the tenant’s lease had been frustrated by law and because his leasehold interest had, in effect, been expropriated, he no longer had an interest in the land and it was not necessary to seek termination of the tenancy under the Residential Tenancies Act. The tenancy no longer existed. Heeney J. made a declaration that the lease was deemed to be frustrated pursuant to s. 34(2) of the Expropriations Act, as of the date of expropriate.

[80] The Municipal Act, 2001, does not contain provisions similar to s. 34(2) and s. 35 of the Expropriations Act. There is no provision in the Municipal Act, 2001 that deems a lease to be frustrated because a closure order has been issued or that a claim of a tenant on the land shall be converted to a claim for compensation because the tenancy has been extinguished at law.

[81] Because the application before me does not request a declaration of frustration, it is unnecessary for me to decide that issue. I make no finding as to whether the tenancy agreements have been frustrated by the one year closure order or by the injunction under s. 440 of the Municipal Act, without prejudice to the landlord or tenants making an application under the Residential Tenancies Act to have the Board determine the question of frustration and possible termination of the leases.

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, 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.

[28] In short, there is no conflict between the RTA and s. 52 of the MA.