Joint Tenancy (Rent Arrears)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-28
CLNP Page ID:	2288
Page Categories:	Contract Law, Leases, & Sub-Letting (LTB)
Citation:	Joint Tenancy (Rent Arrears), CLNP 2288, <https://rvt.link/97>, retrieved on 2024-04-28
Editor:	MKent
Last Updated:	2023/10/19

TSL-89175-17 (Re), 2018 CanLII 42888 (ON LTB)

20. With respect to whether the N4 notice is defective as BJ is not mentioned as a respondent tenant in the within application, the real issue is whether BJ was in possession of the unit at the time the Landlord filed the within application on September 29, 2017. As already stated, the Landlord’s and BJ’s uncontradicted evidence was BJ vacated the unit in late July, 2017. AL, if she was a tenant of the unit, which is to a large extent immaterial, vacated the unit in late June, 2017. Based on the evidence presented I find, on a balance of probabilities, neither BJ, nor AL exercised any control over the unit at the time the application was filed, had access to the unit, used the unit for any purpose, or otherwise had a connection to it.

21. The leading case on the meaning of “in possession” is the Court of Appeal’s decision in Bakker. The Court states, at paragraphs 18 to 22, as follows:

[18]…I think the requirement that the tenant be "in possession of the rental unit" at the time of the application reflects a determination that rent arrears disputes can be resolved efficiently and fairly through the Tribunal where the tenant at the time of the application continues to have some connection with the rental unit and, therefore, some relationship with the landlord. Situations where that connection has been severed and the relationship gone are best resolved through the more formal court processes.

[19] Some further assistance in defining "tenant in possession" is found by an examination of s. 86(2). That subsection provides that a landlord may be compensated for "the use and occupation" of a rental unit after notice of termination of the lease. A landlord can only be compensated, however, if the tenant is "in possession of the rental unit" when the landlord's application is made. This suggests that a "tenant in possession" is a person who was using or occupying the rental unit at the time of the application but does not necessarily indicate that the phrase is limited to users and occupiers.

[20] Possession is a difficult concept to define. Both in common and legal parlance, it connotes some form of control over the thing said to be possessed: e.g. D. Dukelow, B. Nuse, The Dictionary of Canadian Law 2nd ed., (1995) Carswell at p. 916; The Shorter Oxford English Dictionary, Vol. II (1973) p. 1635. Clearly, possession in s. 86(1)(b) is not limited to immediate physical control. For example, a tenant who locks up a rental unit and leaves on an extended vacation, continues to exercise sufficient control over that rental unit so as to qualify as a "tenant in possession" for the purposes of s. 86(1)(b). In my view, possession of a rental unit refers to some form of control over that unit as demonstrated by factors such as access to, use of, or occupation of the unit.

[21] There will be cases, although I would not think a great many, where a determination of whether the tenant was "in possession of the rental unit" at the time of the application will raise a difficult issue. In those cases, the Tribunal will have to decide, based on the evidence, whether there is a sufficient connection between the rental unit and the tenant to permit a finding that the tenant was "in possession" of that rental unit.

[22] In this case, there was no connection between Bakker and the rental unit at the time the s. 86 application was commenced. Bakker exercised no control over that unit. He had unequivocally, completely, and permanently vacated the unit more than two years before the application.

22. As such the Landlord is solely required to name the Tenant in the application as he was the only tenant in possession of the rental unit, when the application was filed.

Bouayed v Chessell, 2021 CanLII 74080 (ON LTB)

3. One of the Tenants, Briana Bell, was not served with the N4 Notice of Termination by the Landlord but was served with the L1 application and the Notice of Hearing. Normally the Landlord’s failure to serve one of the Tenants with the notice of termination would result in the dismissal of the Landlord’s application. However, in this case Ms. Ball has already permanently vacated the rental unit, meaning the issue of termination of the tenancy is effectively moot for this Tenant. As Ms. Ball has been served with the Landlord’s L1 arrears application and the Notice of Hearing it would not be unfair to name her as a Tenant in this order.