Shared Kitchen and/or Bathroom with Landlord (RTA Exemption)

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Date Retrieved:	2024-11-13
CLNP Page ID:	678
Page Categories:	[RTA Exempt Tenancies], [Eviction (Commercial Tenancy)]
Citation:	Shared Kitchen and/or Bathroom with Landlord (RTA Exemption), CLNP 678, <https://rvt.link/u>, retrieved on 2024-11-13
Editor:	Sharvey
Last Updated:	2024/02/15

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Also See

• Non-Application of the RTA (Eviction)

Residential Tenancies Act, 2006, S.O. 2006, c. 17

3 (1) This Act, except Part V.1, applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary. 2013, c. 3, s. 22 (1).

...

5 This Act does not apply with respect to,

...

(i) living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located;

...

9 (1) A landlord or a tenant may apply to the Board for an order determining,

(a) whether this Act or any provision of it applies to a particular rental unit or residential complex;

(b) any other prescribed matter. 2006, c. 17, s. 9 (1).

(2) On the application, the Board shall make findings on the issue as prescribed and shall make the appropriate order. 2006, c. 17, s. 9 (2).

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.

Keith Whitney Homes Society v. Payne, 1992 CanLII 7691 (ON SC)

The residents were required to sign a licensing agreement. The licensing agreement required the resident to pay rent monthly according to his or her financial capability and provided that if the rent was not paid on time this was deemed to be notice by the resident that he or she intended to vacate the premises. The agreement also contained rules of conduct.

The applicant applied for a declaration that its premises were not "residential premises" for the purposes of Part IV of the Landlord and Tenant Act and that the licensing agreement with the respondent was not a tenancy agreement subject to the Act.

Held, the premises were not residential premises; the licensing agreement was a tenancy agreement.

The definition of "residential premises" in the Landlord and Tenant Act excluded "accommodation occupied by a person for rehabilitative or therapeutic purposes or for the purposes of receiving care". The applicant's premises qualified under this exclusion. The accommodation went beyond simple low-income housing. It was not necessary that the occupation of the premises be primarily for the purpose of rehabilitation. If the legislature had intended rehabilitation to be a primary purpose, rather than, for example, a significant purpose, it would have said so.

The parties cannot turn a tenancy into a licence merely by calling it one. In determining whether there was a tenancy, the only intention that is relevant is the intention to grant exclusive possession for a term at a rent. The respondent was given exclusive possession of his room, and together with other members of his apartment, the kitchen, bathroom and living room, for so long as he paid the rent. The respondent was a tenant and the relationship between the parties was that of landlord and tenant.

APPLICATION by a landlord for a declaration that its premises were not "residential premises" for the purposes of Part IV of the Landlord and Tenant Act and that its licensing agreement with the respondent was not a tenancy agreement subject to the Act.

...

The Landlord and Tenant Act [then R.S.O. 1980, c. 232] was amended in June 1987 by Bill 10 [S.O. 1987, c. 23, s. 1] which expanded the definition of "residential premises" to include rooming houses, boarding houses and lodging houses, making them subject to Part IV of the Act. In its report leading up to the introduction of Bill 10 the Ontario Task Force on Roomers, Boarders and Lodgers acknowledged that rooming and boarding houses providing "special needs" people with accommodation in association with "care" should be exempted from the Landlord and Tenant Act and that "care" should be broadly defined. The Task Force specifically recommended that what is now para. ( i) of s. 1 "residential premises" of the Act be added as an exemption to the definition of "residential premises". The report of the Ontario Task Force was filed in evidence in the applicants' book of authorities under Tab 24.

...

I am urged by counsel for the respondent to find that the occupation required by s. 1 "residential premises" ( i) must be primarily for the purpose of rehabilitation. That submission is made because of decisions of the Rent Review Hearings Board of this province pursuant to s. 4(1)( e) of the Residential Rent Regulation Act, R.S.O. 1990, c. R.29. That section is virtually identical to the section of the Landlord and Tenant Act that I have to consider, providing as it does that the Residential Rent Regulation Act does not apply to:

(e) living accommodation occupied by a person for penal, correctional, rehabilitative or therapeutic purposes or for the purpose of receiving care . . .

The Board has held that for the premises to be exempted, the occupation must be primarily for one of the purposes set out in the section.

I am not, of course, bound by a decision of the Rent Review Hearings Board but because of the similarity of the language, I must obviously take that Board's decision into consideration. I am persuaded that if the legislature had intended rehabilitation to be a primary purpose, rather than, for example, a significant purpose, of the accommodation it would have said so as it did in para. (f)(i) of s. 1 "residential premises". In that paragraph an exemption is provided for an educational institution for accommodation provided to its students or staff where "the accommodation is provided primarily to persons under the age of majority" (emphasis added).

Giving the words of para. (i) their natural meaning, I conclude that if the accommodation is occupied for one of the listed purposes, it is within the exclusions to residential premises provided for in s. 1.

Upon the evidence before me, I must conclude that rehabilitation is a purpose of accommodation in the applicant's quarters. The system of involving the residents in the management of their living arrangements, the provision of facilitators/counsellor services on a 24-hour basis, and the recognition that the tenants are persons having special needs, satisfy me that the accommodation provided goes beyond simple low income housing.

The respondent argues that whatever was the intent of the applicant in providing the accommodation, he was not in need of any rehabilitation, and he took the premises because they were affordable.

That may well be the case, but I do not feel that the respondent's individual and subjective view of the reasons for his occupancy can be the indicia to decide whether the applicant's housing operation is or is not subject to the Act.

I accordingly conclude that the applicant's premises are not residential premises within the definition of the Landlord and Tenant Act.

The second issue

The next issue that I must determine is whether the right of occupation given to Mr. Payne is in the nature of a licence or of a tenancy.

The law on the second issue

I have been referred to Donald Lamont's helpful work, Residential Tenancies , 4th ed. (Toronto: Carswell, 1983) where the author discusses at pp. 14-15 the distinction between the relationship of landlord and tenant on the one hand and licensor and licensee on the other. It is suggested that in considering this problem I must have regard to more than whether the resident has exclusive possession of the premises. In this case there is no question that the respondent has exclusive possession of his bedroom subject to the applicant's right to inspect on an annual basis. However, I must also consider whether the applicant is subject to rules restricting his use of the premises and, more fundamentally, the intention of the parties as expressed in the agreement which they have made.

In the case before me, the agreement between the parties which is to be found at Exhibit A to the affidavit of the respondent filed under Tab 8 of the application record is very much more than a lease. As previously noted, it provides for building rules and a host of other regulations, including an extensive section on conflict and dispute resolution.

I conclude that the agreement between the parties was intended to be an agreement for far more than the use by Mr. Payne of a designated room within the applicant's premises. It was an agreement whereby Mr. Payne would be admitted to a community, expected to participate in the decisions of the community and to be governed by its rules. To that extent the applicant and the respondent intended to create an agreement that was personal in nature.

...

The applicant has referred me to the decision of Doyle Co. Ct. J. in Maxwell v. Brown (1982), 1982 CanLII 2161 (ON SC), 35 O.R. (2d) 770 (Ct. Ct.) and the authorities and cases reviewed by him in that decision.

That case concerned whether the Act applied to the relationship between the occupant of a room in a rooming house and the owner of the house. The learned judge relied upon decisions of Lord Denning M.R. in Abbeyfield (Harpenden) Society Ltd. v. Woods , [1968] 1 All E.R. 325, [1968] 1 W.L.R. 374 (C.A.) and Marchant v. Charters , [1977] 3 All E.R. 918, [1977] 1 W.L.R. 1181 (C.A.), to support his conclusion that the occupant in the case before him did not have a sufficient stake in his room to bring him within the Act and was a mere licensee.

The troublesome question of tenancy or licence was reviewed thoroughly by the House of Lords in the recent case of Street v. Mountford, [1985] 2 All E.R. 289, [1985] 2 W.L.R. 877. Lord Templeman, with whose opinion the other members of the panel concurred, suggest that the decisions in Abbeyfield and Marchant were sustainable on the grounds that the occupier was a lodger and did not enjoy exclusive possession. At p. 299 All E.R. His Lordship said:

But in my opinion, in order to ascertain the nature and quality of the occupancy and to see whether the occupier has or has not a stake in the room or only permission for himself personally to occupy, the court must decide whether on its true construction the agreement confers on the occupier exclusive possession. If exclusive possession at a rent for a term does not constitute a tenancy then the distinction between a contractual tenancy and a contractual licence of land becomes wholly unidentifiable.

In dealing with the suggestion that it is the intention of the parties that is to be determined, His Lordship said at p. 300:

My Lords, the only intention which is relevant is the intention demonstrated by the agreement to grant exclusive possession for a term at a rent.

His Lordship was of the opinion that a tenancy arose whenever there was a grant of exclusive possession for a fixed or periodic term at a stated rent.

It was not suggested by the applicant that the respondent was a roomer. He was given exclusive possession of his room, and, together with other members of his "apartment", the kitchen, bathroom and living room, for so long as he paid the stipulated monthly rent.

It is clear that the parties cannot turn a tenancy into a licence merely by calling it one.

In this case, the parties called the agreement a licence, and it contained provisions not found in the usual form of lease. But it did give the respondent exclusive possession of accommodation for a term in return for rent, and applying the test in Street v. Mountford, supra, I find the respondent to be a tenant, and the relationship between the parties to be that of landlord and tenant.

I am prepared to hear submissions as to costs, but in the absence of an appointment being taken out for that purpose within ten days, costs shall be to the applicant.

Order accordingly.

Rahimi v. Regional Assessment Commissioner, Region No. 9, 1997 CanLII 12097 (ON SC)

Tenancy or licence

Notwithstanding the applicants' submission that I should expound the words "rented" or "leased" in their grammatical and ordinary sense, counsel referred me to no fewer than 15 legal authorities to assist the court with the interpretation of "leased" and several authoritative dictionary definitions and judicial pronouncements on the meaning of "rented". In my view, I need go no further on the question of tenancy than the decision of the House of Lords in Street v. Mountford, [1985] A.C. 809, [1985] 2 All E.R. 289 (H.L.), which establishes the test for a tenancy at common law. The hallmarks of a tenancy are exclusive possession for a term at a rent. But, as I read this case, the court there determined that if the agreement confers on the occupier exclusive possession, this is prima facie a grant of an interest in land. The question to be asked and answered is what is the fundamental right that the occupier has secured? The House of Lords adopted at p. 827 the summary of the issue as stated in a decision of the Australian High Court in Radaich v. Smith (1959), 101 C.L.R. 209 at p. 222:

What then is the fundamental right which a tenant has that distinguishes his position from that of a licensee? It is an interest in land as distinct from a personal permission to enter the land and use it for some stipulated purpose or purposes. And how is it to be ascertained whether such an interest in land has been given? By seeing whether the grantee was given a legal right of exclusive possession of the land for a term. If he was, he is a tenant. And he cannot be other than a tenant, because a legal right of exclusive possession is a tenancy and the creation of such a right is a demise. A reservation to the landlord, either by contract or statute, of a limited right of entry, as for example to view or repair, is, of course not inconsistent with the grant of exclusive possession. Subject to such reservations, a tenant for a term or from year to year or for a life or lives can exclude his landlord as well as strangers from the demised premises . . .

In my view, Street v. Mountford stands for the proposition that, while the parties may call it otherwise, the grant of exclusive possession is the singular distinguishing feature between a licence and a lease. It is true that exclusive possession is not decisive. The court may well find exceptional circumstances which, notwithstanding exclusive possession, negative an intention to create the legal relationship of landlord and tenant: Errington v. Errington, [1952] 1 K.B. 290, [1952] 1 All E.R. 149 (C.A.); Booker v. Palmer, [1942] 2 All E.R. 674, 87 Sol. Jo. 30 (C.A.); Cobb v. Lane, [1952] 1 All E.R. 1199, [1952] 1 T.L.R. 1037 (C.A.). These cases are explained by Denning L.J. in Facchini v. Bryson, [1952] 1 T.L.R. 1386 at pp. 1389-90, 96 Sol. Jo. 395 (C.A.), as follows:

In all the cases where an occupier has been held to be a licensee there has been something in the circumstances, such as a family arrangement, an act of friendship or generosity, or such like to negative any intention to create a tenancy . . .

2503257 Ontario Ltd. v. 2505304 Ontario Inc. (Good Guys Gas Bar), 2020 ONCA 149

[1] As a courtesy by letter dated June 17, 2019, this court’s Senior Legal Officer alerted the parties to a potential problem regarding this court’s jurisdiction to hear an appeal from an order granting vacant possession. She suggested that they could bring a motion before a single judge of this court or file a consent order transferring the appeal to the Divisional Court without the necessity of today’s attendance.

[2] The parties did not do so but argued that this court has jurisdiction to hear this appeal.

[3] We disagree. The application judge granted vacant possession to the respondent which, in our view, is caught under s. 78 (1) of the Commercial Tenancies Act, R.S.O. 1990. C. L.7, when read in light of the statutory scheme set out in s. 74 to 78, which deal with who is entitled to possession after a notice under the Commercial Tenancies Act is served. The February 13, 2019 order of Hourigan J.A., refusing a stay of the order under appeal and consequentially granting a writ of possession, was ancillary to the order granting vacant possession. It is therefore not an impediment to the Divisional Court’s jurisdiction to hear this appeal.

[4] As a result, the appeal from the January 23, 2019 order granting vacant possession must be made to the Divisional Court.

[5] Accordingly, the appeal in this court is transferred to the Divisional Court pursuant to s. 110 (1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

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

74 (1) Where a tenant after the tenant’s lease or right of occupation, whether created by writing or by parol, has expired or been determined, either by the landlord or by the tenant, by a notice to quit or notice pursuant to a proviso in a lease or agreement in that behalf, or has been determined by any other act whereby a tenancy or right of occupancy may be determined or put an end to, wrongfully refuses or neglects to go out of possession of the land demised to the tenant, or which the tenant has been permitted to occupy, the tenant’s landlord may apply upon affidavit to a judge of the Superior Court of Justice to make the inquiry hereinafter provided for and the application shall be made, heard and determined in the county or district in which the land lies. R.S.O. 1990, c. L.7, s. 74 (1); 1993, c. 27, Sched.; 2006, c. 19, Sched. C, s. 1 (1).

(2) The court shall in writing appoint a time and place at which a judge will inquire and determine whether the person complained of was tenant to the complainant for a term or period that has expired or has been determined by a notice to quit or for default in payment of rent or otherwise, and whether the tenant holds the possession against the right of the landlord, and whether the tenant, having no right to continue in possession, wrongfully refuses to go out of possession. R.S.O. 1990, c. L.7, s. 74 (2).

(3) Notice in writing of the time and place appointed, stating briefly the principal facts alleged by the complainant as entitling the complainant to possession, shall be served upon the tenant or left at the tenant’s place of abode at least three days before the day so appointed, if the place appointed is not more than twenty miles from the tenant’s place of abode, and one day in addition for every twenty miles above the first twenty, reckoning any broken number above the first twenty as twenty miles, to which notice shall be annexed a copy of the judge’s appointment and of the affidavit on which it was obtained, and of the documents to be used upon the application. R.S.O. 1990, c. L.7, s. 74 (3).

75 Application under this Part shall be styled in English or French, as may be appropriate:

In the matter of (giving the name of the party complaining), Landlord, against (giving the name of the party complained against) Tenant.

76 (1) If, at the time and place appointed, the tenant fails to appear, the judge, if it appears to him or her that the tenant wrongfully holds against the right of the landlord, may order a writ of possession (Form 3) directed to the sheriff of the county or district in which the land lies to be issued commanding him or her forthwith to place the landlord in possession of the land. R.S.O. 1990, c. L.7, s. 76 (1).

(2) If the tenant appears, the judge shall, in a summary manner, hear the parties and their witnesses, and examine into the matter, and, if it appears to the judge that the tenant wrongfully holds against the right of the landlord, he or she may order the issue of the writ. R.S.O. 1990, c. L.7, s. 76 (2).

77 The judge has the same power to amend or excuse irregularities on an application as he or she would have in an action. R.S.O. 1990, c. L.7, s. 77.

78 (1) An appeal lies to the Divisional Court from the order of the judge granting or refusing a writ of possession. R.S.O. 1990, c. L.7, s. 78 (1).

(2) If the Divisional Court is of opinion that the right to possession should not be determined under this Part, the court may discharge the order of the judge, and the landlord may in that case proceed by action for the recovery of possession. R.S.O. 1990, c. L.7, s. 78 (2).

(3) When the order is discharged, if possession has been given to the landlord under a writ of possession, the court may direct that possession be restored to the tenant. R.S.O. 1990, c. L.7, s. 78 (3).

Carr v Ottawa Police Services Board, 2017 ONSC 4331 (CanLII)

[24] The allegations against the police officers include that their conduct resulted in breaches of Roxanne’s Charter rights. Roxanne seeks damages for those breaches. Lastly, Roxanne claims punitive damages against the defendants on the basis that their conduct was callous and high-handed.

Issue No. 1 - Did the police have authority, under either of the provincial Trespass to Property Act or the Criminal Code of Canada, to arrest Roxanne without a warrant?

[25] It is undisputed that Roxanne’s arrest was carried out without a warrant. Under both the Trespass to Property Act, R.S.O. 1990, c. T.21 (“TPA”) and the Criminal Code of Canada, R.S.C. 1985, c. C-46] (the “Code”), police have the authority, in limited circumstances, to make an arrest without a warrant.

a) Arrest Without a Warrant Under the TPA

[26] The offence of trespass to property involves entering premises without the permission of the occupier and/or remaining on premises when asked by the occupier to leave. At issue is whether the individual has the right or legal authority to enter and/or remain on the premises: see section 2.

[27] To make an arrest without a warrant pursuant to the TPA, a police officer must have “reasonable and probable grounds” to believe that the individual is on the premises in contravention of the statute: see section 9(1).

[28] Did Adlard and Cybulski have reasonable and probable grounds to believe that Roxanne was on and/or refused to leave the premises without “colour of right” or “authority conferred by law”, in contravention of section 2 of the TPA? For the following reasons, I find they did not:

• As a rent-paying sub-tenant in the home, Roxanne was a licensee and had the right to remain in the home;

• As a licensee, Roxanne was entitled to notice from Morgan of the requirement to leave the home;

• There is no evidence that Morgan gave Roxanne notice to leave the home; and

• There is no evidence that Morgan informed Adlard and Cybulski that he gave Roxanne notice to leave the home.

[29] In summary, in the absence of reasonable notice from Morgan of the requirement to leave the home, Roxanne was, as a rent-paying sub-tenant, entitled to remain on the premises.

• Roxanne was, at a Minimum, a Licensee and Entitled to Remain

[254] In summary, the defendants are liable to Roxanne as follows:

1. Constable Adlard (false arrest, false imprisonment, excessive use of force, and negligent investigation), Special Constable Marcil (excessive use of force), and the Ottawa Police Services Board are jointly and severally liable to Roxanne Carr for the following damages:

a) General damages in the amount of $90,000.00;

b) Damages for loss of earning capacity in the amount of $120,000.00; and

c) Damages for out-of-pocket expenses and the cost of future counselling sessions in the amount of $37,226.84.

2. Constable Cybulski, Special Constables Morris and Marcil, Sergeant Desjourdy, and the Ottawa Police Services Board are jointly and severally liable to Roxanne Carr for damages in the amount of $7,500.00 pursuant to section 24(1) of the Charter of Rights and Freedoms.

[255] The balance of the claims against the defendants are dismissed.

Cowie v. Bindlish, 2010 ONSC 2628 (CanLII)

[4] The appellant does not dispute that living accommodation which is the subject of this appeal falls within the scope of section 5 (i). However, it is his position that the respondent, his landlord, did not “live in the building in which the living accommodation is located” at the time that he and the respondent entered into their tenancy agreement and, therefore, that the Act does apply to the room which he rented.

[16] It is my respectful view that neither view was a sufficient basis on which the board was entitled to decline jurisdiction. Both board members erred in law, albeit differently, in their respective interpretation of section 5 (i) of the Act and we must now interfere. The section explicitly creates an exemption from the general application of the Act only if the person in the category of the respondent “lives in the building in which the living accommodation is located”. That means that the respondent was required to live in the building at the time when she rented the room to the appellant in order for the exemption to apply. It was not sufficient that she merely intended to move in at some subsequent time. Nor was it sufficient that she actually did move in at a subsequent time.

[17] Any interpretation of section 5 (i) of the Act that would permit the respondent to unilaterally cause the board to be deprived of its jurisdiction to hear the appellant’s application by forming an intention in her own mind without communicating it to the appellant or by moving into the house at a later time would be contrary to the language of the section and the intention of the Legislature and would be grossly unfair. It would also effectively result in an unwarranted revision of the tenancy agreement that the parties had made.

[18] Any such interpretation would also, in my view, be inconsistent with the objectives of the Act as reflected in sections 1 and 3 (1) of the Act. Section 3 (1) of the Act sets out the application of the Act. It reads as follows;

3. (1) This Act applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary.

Section 1 of the Act sets out the purposes of the Act. It reads as follows;

The purposes of the Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes.

[19] Other grounds of appeal relating to the conduct of the board hearings including the findings made and the sufficiency of the reasons given were also briefly argued by counsel for the appellant but the respondent, who was self-represented, was understandably unable to make any submissions in response. Although we recognize that there may well be merit in these grounds too, we consider that in these circumstances it is desirable that we confine our judgment to the jurisdictional issue.

Quin v McCaughey, 2016 ONSC 7921 (CanLII)

[18] The appellant claims that the Board’s determination that the Act does not apply to this case was unreasonable. He claims that the nature of the tenancy can change over time and the word “child” in the exclusion in section 5(i) of the Act does not include a situation where the tenant is married to the “child” of the landlord. He claims that the exemption only applies to rooming houses.

[19] The words of the legislation are to be read in context, in their ordinary sense, in a manner consistent with the objectives of the Act and the intention of the legislators. (See Rizzo v. Rizzo Shoes Ltd., Re, 1998 CanLII 837 (SCC), 1998 CarswellOnt 1 (SCC) at para 52).

[20] The Board member and the Vice Chair determined that section 5(i) of the Act governed the tenancy at the time this tenancy agreement was entered into. At the time, the appellant was cohabiting with the respondent’s daughter. The respondent landlady never agreed to a tenancy agreement within the meaning of the Act. The Board therefore determined that the appellant’s living accommodation was within the exemption in section 5(i) of the Act.

[21] The decisions of the Board are reasonable for the following reasons:

(a) The Board’s determinations that there is only one kitchen and bathroom in the unit and that the appellant was therefore required to share them with the respondent’s daughter who lived with the appellant when he entered into the tenancy agreement, are questions of fact that are not subject to appeal;

(b) As the Board found, contrary to the assertion of the appellant, the plain and ordinary meaning of the word “child” in section 5(i) of the Act does not exclude a situation where the tenant is married to the “child” of the landlord or this type of tenancy;

(c) There is no authority for the appellant’s proposition that the legislators intended to treat spouses differently from others subject to the exemption in section 5(i) of the Act;

(d) The finding that the determination is made in this case at the time the agreement is entered into, is consistent with the decisions in Cowie v. Bindlish, paras 4, 16 and 17 and Hooey v. Bomze, 1993 CarswellOntario 2047 (Gen.Div). Those decisions make it clear that one party alone cannot change the legal nature of the relationship. This means that the appellant could not decide that he could rely on the protections in the Act just because the landlady’s daughter Meghan was no longer sleeping in the unit; and

(e) To enable a party to opt in and out of the exemption is not reasonable as it would allow the appellant to unilaterally revise the terms of the tenancy agreement.

[22] For these reasons, the Appeal is dismissed.

Mason Homes Limited v. Woodford, 2014 ONCA 816 (CanLII)

[16] A proper analysis of ss. 18 and 19 of the Act would necessitate consideration not only of the timing of the re-entry, but also of whether the premises were abandoned when the re-entry occurred. When premises have been abandoned, immediate re-entry by a landlord does not prejudice its ability to claim for the rent outstanding: Commercial Credit Corp. v. Harry D. Shields Ltd. (1980), 1980 CanLII 1617 (ON SC), 29 O.R. (2d) 106, at paras. 16-20 (H. Ct. J.); 615314 Ontario Ltd. v. 396380 Ontario Inc., [1995] O.J. No. 1518 (Ont. Ct. J. Gen. Div.).

[17] There was no evidence on the issue of abandonment adduced at trial because the Act was not pleaded and the respondents had, in any event, admitted that re-entry occurred on January 20, 2005. The trial judge did not, therefore, have a proper evidentiary foundation to conduct his analysis of the application of the Act. Instead, he equated a changing of the locks with a re-entry resulting in forfeiture of right to sue for the balance of the rent due and failed to conduct a meaningful analysis of the issue of abandonment.

Divitcos v. CompCorp Life Insurance Co. 1997 CarswellOnt 547 Ontario Court of Justice (General Division)

53. If the solicitor counselled or countenanced these clearly illegal acts of his clients his own conduct was outrageous, and well below the standard which the court is entitled to expect from any solicitor licenced to practice as such in Ontario. The policy against self-help - against the recovery of possession of residential premises except under the authority of a writ of possession - is too well established to allow for an exculpatory plea of ignorance of the law from a solicitor purporting to act in this area of the law. The provision prohibiting the changing of locks is very clear - and may be seen as part of the larger policy against self-help. I am convinced that instances of self-help with respect to residential tenancies have a significant potential for begetting violence. A majority of the persons in Metropolitan Toronto live in rented accommodation. The public interest in avoiding self-help remedies is obvious and the public policy is clearly reflected in the legislation. It is not tolerable that solicitors, or other representatives of landlords or tenants, whether through ignorance or defiance, countenance, counsel or assist with illegal activities such as those carried out in this case by Diane and Steve Divitcos.

66. In addition to the arguments based on the relevant provisions of the Mortgages Act and the Landlord and Tenant Act referred to above, the moving parties also rely upon the provisions of rule 60.10(2) of the Rules of Civil Procedure which states:

The court may grant leave to issue a writ of possession only where it is satisfied that all persons in actual possession of any part of the land have received sufficient notice of the proceeding in which the order was obtained to have enabled them to apply to the court for relief.”

Regina v. Doucette, 1960 CanLII 138 (ON CA)

It should be made clear at the outset that the recaption or resumption of possession of goods by the act of the owner through an agent or bailiff acting under his written authority, is not a lawful execution of any process against lands or goods, or is not the making of a lawful distress or seizure within the meaning of s.110 (c) of the Cr. Code which is directed against resistance to or wilful obstruction of any person engaged in the performance of such acts. This is placed beyond question by the decision of the Court of Appeal in R. v. Shand (1904), 1904 CanLII 109 (ON CA), 7 O.L.R. 190.

The limitations upon the right of an owner to repossess his goods without process of law are stated clearly and succinctly in 3 Blackstone, Commentaries, pp.3-4, from which I quote

Recaption or reprisal is another species of remedy by the mere act of the party injured. This happens when any one hath deprived another of his property in goods or chattels personal, ... in which case the owner of the goods ... may lawfully claim and retake them wherever he happens to find them, so it be not in a riotous manner, or attended with a breach of the peace. The reason for this is obvious; since it may frequently happen that the owner may have this only opportunity of doing himself justice: his goods may be afterwards conveyed away or destroyed; ... if he had no speedier remedy than the ordinary process of law. If therefore he can so contrive it as to gain possession of his property again without force or terror, the law favors and will justify his proceeding. But as the public peace is a superior consideration to any one man's private property; and as, if individuals were once allowed to use provate force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is provided that this natural right of recaption shall never be exerted where such exertion must occasion strife and bodily contention, or endanger the peace of society.

This passage in Blackstone was commented upon and applied by Parke, B., in Patrick v. Colerick (1838), 3 M. & W. 483. See also Davis v. Whitridge, (1847), 2 Strob. 232.

It is very clear that whatever rights the vendor or his assignee or their authorized agent might have had under the terms of the conditional sales contract (the purchase money being in arrear and unpaid) to enter upon Chappell's premises to resume possession of the goods in question, it would be illegal for them to take such possession by force. Traders Bk. v. Browne Mfg. (1889), 18 O.R. 430, cited by counsel for the respondents is authority for this proposition. In Re Nu-Way Meat Market (1940), 22 C.B.R. 46, it was held that the liquidator might claim possession of a truck sold to a debtor under suspensive conditions of property, where the vendor had taken possession of it by force and deceit since the winding up, and had neglected to furnish the liquidator with the detailed account of what was still owned by the debtor; whatever the terms of the deed, no one had the right to take the law into one's own hands.

[...]

There must be reasonable limits imposed upon the right of self-help assumed and asserted by private individuals in order to preserve peace and tranquillity and to avoid the evil consequences which are bound to flow from insistence upon a right to use private force. Under s. 39 of the Cr. Code, the peaceable possessor of movable property under a claim of right is protected from criminal responsibility (although not from civil responsibility) for resisting its taking even by the person legally entitled.

Sunrise North Senior Living Ltd. v. The Sheriff (Regional Municipality of York), 2020 ONSC 469 (CanLII)

[63] Section 141(1) of the Courts of Justice Ac, R.S.O., c. C.43, states that "orders of a court arising out of a civil proceeding and enforceable in Ontario shall be directed to a sheriff for enforcement".

[64] As held by Bale J. in his decision of January 8, 2019, in combination these two provisions make clear that the sheriff "is required to enforce the eviction order, in the same manner as a writ of possession…"

[70] The Sheriff does not have the discretion to decide not to enforce the eviction orders.

[71] In Central Guaranty Trust Co. v. McRae (1993), 1993 CanLII 8542 (ON SC), 13 O.R. (3d) 295 (Sup. Ct.), at para. 12, the Superior Court held that the Sheriff has a duty to enforce validly made writs of possession and no discretion not to do so:

A writ of possession is an order of the court. It is granted only after a Judge or master has made a judicial determination which includes consideration of the rights of the occupants. A Sheriff is an officer of the court, sworn to uphold the law. Refusal by a law enforcement officer to enforce an order of the court can only serve to undermine respect for the judicial system and bring the administration of justice into disrepute. A Sheriff, therefore, has no discretion to refuse to execute a writ of possession.

[72] The same principle clearly applies to the Sheriff's obligation to enforce an eviction order made by the Board, given that section 85 of the Residential Tenancies Act provides that an eviction order is to be enforced in the same manner as a writ of possession.

TST-26870-12 (Re), 2012 CanLII 46802 (ON LTB)

The Landlord’s representative submitted that the Tenant’s application should be dismissed pursuant to subsection 5(i) of the Act on the basis that the Landlord shared a bathroom with the owner who lives in the building in which the living accommodation is located.

On the wording of the subsection, the Act does not apply to “living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner…”

That is not the case in the present application. Here, the owner does in fact have her own bathroom facilities but, on her own evidence, now sometimes uses the second floor bathroom (which is the sole bathroom to which tenants have access.) The Tenant was never required to share a bathroom with the Landlord although it happens that the Landlord, since her stroke, frequently uses the bathroom dedicated for her tenants’ use.

I therefore find that the Act applies to this tenancy.

TET-87517-18-IN (Re), 2018 CanLII 42846 (ON LTB)

1. At the beginning of the hearing the Landlord raised a preliminary issue with respect to the Board’s jurisdiction. The Landlord contends that the Residential Tenancies Act 2006 (the ‘Act’) does not apply to the tenancy agreement between the parties as the Landlord lived in the rental unit and shared a washroom and a kitchen with the Tenant.

2. Subsection 5(i) of the Act stipulates that the Act does not apply to living accommodation where the occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent, and where the owner, spouse, child or parent lives in the building in which the accommodation is located (emphasis added). Both prongs of the test must be satisfied for the tenancy to be exempt.

3. The Tenant disputes that the Landlord ever shared a kitchen or washroom with the Tenant and maintains that the Landlord did not live in the rental unit at all. The Tenant stated that the Landlord hung his clothes in the bathroom in order to stage his presence and that he lived elsewhere returning to the rental unit only to deliver mail and to collect the rent.

28. However, in the decision Cowie v. Bindlish, 2010 ONSC 2628 (CanLII), the Divisional Court found that section 5(i) of the RTA:

explicitly creates an exemption from the general application of the Act only if the person in the category of the respondent “lives in the building in which the living accommodation is located”. That means that the respondent was required to live in the building at the time when she rented the room to the appellant in order for the exemption to apply. It was not sufficient that she merely intended to move in at some subsequent time. Nor was it sufficient that she actually did move in at a subsequent time.

29. Thus, I must consider whether or not the Landlord actually lived in the rental unit at the time the tenancy began.

30. The necessity of looking at the actual living circumstances at the beginning of the tenancy also arises as a result of the application of section 202 of the Act. In making findings on an application, section 202 of the Act empowers the panel to determine the real substance of all transactions and activities pertaining to a rental unit; with respect to this tenancy.

31. The effect of section 202(1) was considered by the Court of Appeal for Ontario in Slapsys (c.o.b. 1406393 Ontario Inc.) v. Abrams 2010 ONCA 676 (CanLII). It was determined that the purpose of section 202(1) was both to enable and to require the Board to determine the true substance of the transaction, activities and good faith of the parties when making findings on an application.

32. In this case the question is whether the Landlord has staged his living situation in an attempt to evade the Act or did he genuinely reside in the apartment.

33. The Landlord likely understood the advantage he derives where the kitchen and/or bathroom facilities are shared with the Landlord. If I believe that the Landlord has not acted in good faith and has staged the appearance of a shared tenancy in order escape the jurisdiction of the Residential Tenancies Act, 2006, this is inconsistent with the legislative intent of the exemption under section 5(i) in conjunction with section 202.

34. As a result, the Landlord did not meet his onus of establishing on a balance of probabilities that he shared a bathroom and/or kitchen with the Tenant and has not established that the tenancy falls under section 5(i) of the Residential Tenancies Act, 2006

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

SWL-17145-18 (Re), 2018 CanLII 88667 (ON LTB)

2. In the Residential Tenancies Act, 2006 (‘the Act’), the definition of ‘tenant’ in section 2(1) includes a person who pays rent in return for the right to occupy a rental unit, but does not include a person who has the right to occupy a rental unit by virtue of being a co-owner of the property.

9. In Warraich v. Choudhry, 2018 ONSC 1267, the Courts clarified that the Board cannot determine equitable ownership as this falls exclusively within the Superior Court’s jurisdiction. To determine if someone is a “co-owner,” the Board may only consider whether that person has legal ownership. The Courts also set out that there is no basis for indefinitely deferring a Board proceeding merely because an equitable claim is being pursued at the Superior Court. In Warraich, the Court found that the Board had jurisdiction to hear the L1 application before it despite the fact that the property was subject to a dispute in Superior Court, and that there was no error in the Board proceeding before the dispute was resolved at Superior Court. Warraich is binding upon me.

10. In this case, based on the testimony and documents before me, I find that KW is not an “owner” or a “co-owner” of the property as that term of the Act was defined by the Court in Warraich because he is not on title as a legal owner. KW is free to pursue his equitable claim in Superior Court but such a proceeding does not affect this Board’s exclusive jurisdiction over residential landlord-tenant disputes.

16. This is a rather unique tenancy situation. The Landlord and the Tenant lived together for approximately four years, sharing a kitchen and bathroom, until the Landlord moved into a new principle residence in the winter of 2017. Subsection 5(i) of the Act exempts living accommodations in which the occupant is required to share a bathroom or kitchen facility with the owner. In this case, the rental unit was exempt from the Act from the commencement of this tenancy in 2014.

17. In Cowie v. Bindlish, 2010 ONSC 2628 (CanLII), the Courts set out that the Board must have regard to the living circumstances at the commencement of the tenancy, and neither party can unilaterally change the terms of the tenancy. One might interpret that to mean since the Act did not apply to this tenancy when it began in 2014, the Act can never apply to this tenancy, even after the conditions that exempted the accommodations from the Act (the sharing of facilities) ceased to exist.

18. However, a careful reading of Cowie reveals that the intent behind the Court’s decision was to prevent parties from making unilateral decisions that would cause the Act to cease to apply. The decision references the purposes of the Act, as set out in subsection 1 which include providing protection for residential tenants from unlawful evictions, and balancing the rights and responsibilities of residential landlords and tenants. In addition, the decision references subsection 3(1) of the Act which sets out that the Act “applies with respect to rental units in residential complexes, despite any other Act and despite any agreement or waiver to the contrary.”

19. The Cowie decision goes on to state at para. 17:

“Any interpretation of section 5 (i) of the Act that would … unilaterally cause the board to be deprived of its jurisdiction … would be contrary to the language of the section and the intention of the Legislature and would be grossly unfair. It would also effectively result in an unwarranted revision of the tenancy agreement that the parties had made”

20. In this case, when the Landlord moved out, I find he made a unilateral decision that caused the Act to apply after he vacated. I do not view this to be an “unwarranted” revision of the tenancy that is unfair to the Tenant; rather it is a reasonable revision of the tenancy agreement reflecting the reality of the Tenant’s changed living arrangements. As a result of the Landlord’s decision to vacate the Tenant, gained the legal protection offered by the Act.

21. The Landlord and his spouse, expecting their first baby, purchased a new primary residence and permanently vacated the rental unit in order to permanently move into their family home. This action caused the exemption set out in subsection 5(i) to cease to apply as the Tenant was no longer required to share a kitchen or bathroom with the owner or a family member of the owner. Once the exemption in subsection 5(i) of the Act ceased to apply, the tenancy became subject to the Act in accordance with subsection 3(1) of the Act.

22. I must determine exactly when the Act began to apply to this tenancy. The Landlord testified that he moved out of the rental unit in January 2018, while the Tenant insisted he moved out in December 2017. With no other supporting evidence, I find the Landlord vacated on or before December 31, 2017, as the Landlord testified he turned the gas to the stove off sometime before January 1, 2018.

23. Therefore, I find the Act applies to this tenancy as of January 1, 2018, and the Board has jurisdiction to hear and make determinations on the Landlord’s application for rent arrears.

TST-92268-18 (Re), 2018 CanLII 123244 (ON LTB)

12. EX brought a preliminary motion as to whether the Residential Tenancies Act, 2006 (the ‘Act’) should apply in a situation where the Landlord’s child is living on the property and sharing a bathroom and kitchen with the Tenants. Ordinarily in these circumstances section 5(i) of the Act would apply to remove the tenancy from the jurisdiction of the Board. However, the evidence demonstrates that it was never disclosed to the Tenants prior to their making their tenancy agreement and moving in to the rental unit that the daughter of the Landlords was resident in the unit. There were a number of opportunities to do so: the text exchange about a girl residing in the living room that would start in April; the rental agreements provided by EX and signed by the Tenants; advising the Tenants at any time before they moved in on January 5, 2018 that EX was a resident. Even when they moved in, the Tenants were unaware that she had possessions there and was apparently resident.

13. I accept the testimony of the Tenants on this issue. I find that EX did not disclose at any point when the tenancy agreement was entered into that she, as a child of the Landlord, was resident in the unit. The Divisional Court case of Cowrie v. Bindlish, 2010 ONSC 2628 says:

The section [section 5(i)] explicitly creates an exemption from the general application of the Act only if the person in the category of the respondent “lives in the building in which the living accommodation is located”. That means that the respondent was required to live in the building at the time when she rented the room to the appellant in order for the exemption to apply. It was not sufficient that she merely intended to move in at some subsequent time. Nor was it sufficient that she actually did move in at a subsequent time.

Any interpretation of section 5 (i) of the Act that would permit the respondent to unilaterally cause the board to be deprived of its jurisdiction to hear the appellant’s application by forming an intention in her own mind without communicating it to the appellant or by moving into the house at a later time would be contrary to the language of the section and the intention of the Legislature and would be grossly unfair. It would also effectively result in an unwarranted revision of the tenancy agreement that the parties had made.

Any such interpretation would also, in my view, be inconsistent with the objectives of the Act as reflected in sections 1 and 3 (1) of the Act.

14. I find that in the application of Cowrie to the circumstances, that neither EX nor the owner Landlord provided any information to the Tenants on which they could have been advised that they were sharing the rental unit with an owner and that the Act would not apply to their tenancy. I find that the Act applies to this tenancy.

Azevedo v. Lograsso, 2019 ONSC 4267 (CanLII)

[21] Section 24(1)(b) of the FLA authorizes the Court to “direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs”.

[22] Section 18(1) of the FLA deems a property to be a matrimonial home in particular circumstances where one of the spouses has an “interest” in the property. Neither Nancy nor Mario have had any proprietary interest in the property since the sale of the property in 2005. A spouse’s interest in the matrimonial home can only be exercised against the interest of the other spouse: FLA s. 19(2). Since Nancy has no interest in the property, Mario cannot assert an interest under s. 18 of the FLA. Mario cannot assert a FLA claim against Maria and Antonio.

[23] Nor are the Respondents tenants under the Residential Tenancies Act, 2006, S.O. 2006, c.17 (RTA). When the “tenancy” first took effect, the Respondents shared a bathroom and kitchen facility with the owners’ daughter, thus bringing the tenancy into the exemption contained in s. 5(i) of the RTA: 5. This Act does not apply with respect to,

(i) living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located

See: Quin v McCaughey, 2016 ONSC 7921, at paras. 20 and 21 (Div. Ct.).

[24] The Respondents have been given more than reasonable notice to vacate. The Respondents have continued to occupy the property without paying rent or maintenance after having received the Applicants’ notice to vacate over one year ago.

Conclusion

[25] The Application is granted. This Court orders that:

(a) The occupancy rights of the Respondents, Mario Lograsso, Joseph Lograsso, Michael Lograsso, and Julian Lograsso in respect of the property known as 33 Solway Avenue, Vaughan, Ontario, if any, have been validly terminated.

(b) The Applicants, Maria Candida Azevedo and Antonio Julio Azevedo are entitled to vacant possession of the property as of July 31, 2019.

(c) An Order that a Writ of Possession in respect of the property shall issue as of August 1, 2019, to the Sheriff of the Regional Municipality of York.

[26] The Applicants are entitled to their costs for today’s proceedings and the January 17, 2019 adjournment, which were reserved for the hearing. The costs of the March 7, 2019 adjournment were ordered on that day.

[27] Costs for the January 17, 2019 adjournment are fixed at $200. Costs of the Application are fixed at $7,500. All costs are payable by the Respondents on a joint and several basis, and payable to the Applicants within 30 days.

TET-02061 (Re), 2009 CanLII 74523 (ON LTB)

19. In my view, the phrase “required to share” contained in section 5. i) of the Act lends itself to two possible interpretations. The first interpretation is that an occupant and an owner of a living accommodation may be required to share a kitchen or bathroom because of the available amenities or physical layout of the premises. The second possible interpretation is that an occupant and an owner of a living accommodation may be required to share a kitchen or bathroom because they have agreed to do so. This latter interpretation was adopted by Ontario District Court Judge Clarke in the case of Kutzak v. Gauthier [1988] O.J. No. 1033, a matter decided under a similarly worded exemption clause found in Part IV of the Landlord and Tenant Act R.S.O. 1980 ch. 232. Judge Clarke determined that the fact that there is more than one kitchen or bathroom in a living accommodation is not determinative of the requirement to share issue:

“…I hold that the phrase “required to share” is wide enough to embrace an occupancy where the occupant is required to share his bathroom or kitchen with the owner even though the owner has separate facilities. That the owner has separate facilities is not determinative. If the Legislature had intended to limit the exclusion to single kitchen and bathroom facilities, it would have expressly said so. I am strengthened in this view by the wording in Section 1(c)(v) which refers not to the bathroom or kitchen facility but to a bathroom or kitchen facility. While this interpretation can lend itself to abuse, the Court will look at the substance, not the formality of the arrangement. In short, the bona fide intention of the parties as gleaned from their words and conduct is critical. Each case will pivot on its own facts.”

TEL-02602 (Re), 2007 CanLII 75966 (ON LTB)

1. The Landlord gave evidence that the residential complex in this matter is a house where the Landlord lives on the main floor and the Tenant lives in the basement. The Landlord gave evidence that there is a full kitchen and bathroom facilities on both levels of the house. The Landlord gave evidence that there is a door separating the two (2) units that is locked but only on the Tenant’s side. The Landlord gave evidence that the Tenant cannot enter the upper unit but that the Landlord has free access to the lower unit. The Landlord gave evidence that he often enters the lower unit to clean and supply the bathroom with the required necessities. The Landlord gave evidence that if his wife is using the bathroom on the main floor he will use the bathroom on the lower level if the need arises. The Landlord was asked if the Tenant is required to share the bathroom or kitchen facilities with the Landlord. The Landlord responded that the Tenant is not necessarily required to share the facilities but there was a verbal agreement that the Landlord can use the facilities if necessary.

1. Section 5 (i) of the Residential Tenancies Act, 2006 (RTA) states “living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located” are exempt from the RTA.

1. As cited in the Legislation above the issue is whether or not the Tenant is required to share the facilities. In this matter the Tenant is not required to share the bathroom or kitchen facilities with the Landlord. The Landlord may use the Tenant’s facilities but because there are separate facilities located in each unit this is only a convenience factor.

TET-83317-17 (Re), 2018 CanLII 42535 (ON LTB)

15. What appears to have happened here is that the Tenant saw the bedroom in the basement and wanted it because it was more private and had a separate exit which I believe went through the garage. Because of his lifestyle he never used the kitchen so from his perspective the basement was his, separate and apart from the shared areas. From his perspective, he was not required to share the kitchen with the Landlord because he never wanted to use it.

16. The difficulty with this perspective is that the law requires a living space to be equipped with a kitchen. The only kitchen in existence when the tenancy agreement was entered into was the one that the Tenant was required to share with the Landlord. The fact he did not use it or intend to use it is irrelevant. The shared kitchen was offered to him and therefore part of the tenancy agreement.

17. Given all of the above, I am satisfied that the exemption in s. 5(i) of the Act applies and this tenancy agreement is not subject to the rights and obligations set out in the Act. Whatever remedy the Tenant has with respect to his agreement with the Landlord lies elsewhere in a court of competent jurisdiction.

TNT-11527-18 (Re), 2019 CanLII 71028 (ON LTB)

9. Although not clearly argued, J.L. may also have meant to argue that the tenancy is exempt from the RTA pursuant to subsection 5(i). That subsection exempts tenancies where the tenant is required to share a kitchen or bathroom with the owner, and where the owner lives in the building.

10. The owner of the complex is a corporation. It does not live in the building, or anywhere else. It also has no physical form and is not capable of using a kitchen or bathroom. The exemption in subsection 5(i) does not apply.

CEL-78819-18 (Re), 2018 CanLII 140420 (ON LTB)

1. Yes. The Residential Tenancies Act, 2006 (the 'Act') applies.

2. There is no dispute that the Landlord occupies rooms in the basement which is not part of the Tenants’ unit; the Tenants grandchildren entered and visited their grandparents as they wished or that the Landlord knocked and requested permission before he accessed the exercise room via the Tenants unit. Despite these findings, a landlord and tenant relationship exists.

3. The Tenants are the mother and step-father to the Landlord (MR). The Tenants are required to pay the Landlords monthly rent charges. The Tenants are not required to share a kitchen and bathroom with the Landlords who have their own kitchen and bathroom upstairs.

TET-95797-18 (Re), 2018 CanLII 113956 (ON LTB)

8. The Landlord says that, from the start of the tenancy in May 2018, the parties agreed that they would share the kitchen on the main floor. The Landlord says the Tenants viewed the entire house and she explained to them that, if they decided to move into the basement, they would be able to use the fridge, stove, cupboards and kitchen workspace as there is no kitchen in the basement. The Landlord also says she offered to share her pots and pans and any dishes or utensils they require.

10. The Tenants say that there was a kitchen in the basement unit and they had no need to share the kitchen with the Landlord on the main floor. TD described the basement kitchen as a bar fridge, a microwave and a hot plate. The Tenant also says there is a sink in the basement.

13. As the Tenants claim that the basement contains a kitchen, the question I must determine is what constitutes a “kitchen facility” within the meaning of the Act. Although the term “kitchen” is not defined in the Act, the concept of a kitchen is mentioned in O. Reg. 517/06, s. 14 (3) which says “every kitchen shall have outlets suitable for a refrigerator and a cooking appliance.”

14. This wording suggests that the outlets in a kitchen must provide enough voltage for a full size fridge and a workable stove and oven appliance. If “cooking appliance” simply referred to a microwave or a hot plate, there would be no need to legislate the type of outlet required in a kitchen and this section of the regulation would be absurd.

15. I would also observe that the municipal by-law for the community in which the rental unit is located outlines the requirements for any kitchen facility. Section 6.6.1 of the bylaw says:

Every Dwelling Unit shall contain a kitchen area equipped with:

(a) a kitchen sink that is served with hot and cold potable water and is surrounded by surfaces impervious to grease and water;

(b) suitable storage area of not less than 0.23 metres3 (8 feet3 ) of which there shall be at least 1.0m (3 ft) in width of cabinet front;

(c) a counter or work area at least 0.55m (1.8 ft.) in depth and at least 1.8m (6 ft.) in length (inclusive of the sink) and covered with a material that is impervious to water and grease and is easily cleanable; and

(d) cooking and refrigeration appliances (including suitable electrical or gas connections thereto).

16. Once again, the reference to “suitable electrical or gas connections” suggests that the appliances must include a fridge and a cooking appliance with an oven and a stove.

17. Based on the Tenants’ description of the basement “kitchen”, I am not satisfied that the basement is properly outfitted with kitchen facilities as defined by the municipal by-law or as contemplated by Regulation 517/06 of the Act. As the basement does not contain a kitchen facility, I find that the Tenants are required to share a kitchen with the Landlord on the main floor of the house and this arrangement is exempt from the Act.

TNT-04456-18 (Re), 2018 CanLII 113952 (ON LTB)

2. The rental unit is the basement of a house. The rental unit is a self-contained two-bedroom unit with its own entrance, a kitchen and bathroom. The Tenants have been living in this rental unit for six years, and have been paying rent to the Landlord for that entire time. The rent is $850.00 per month, payable on the first of the month.

5. Did the parties have a landlord/tenant relationship? I have considered section 2(1)(a) of the Act, which defines a “landlord” as “the owner of a rental unit or any other person who permits occupancy of a rental unit, other than a tenant who occupies a rental unit in a residential complex and who permits another person to also occupy the unit or any part of the unit…”. I take into account that section in conjunction with section 202(1)(a) and (b) of the Act that stipulates in “making findings on an application, the Board shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants and in doing so,

(a) may disregard the outward form of a transaction or the separate corporate existence of participants; and

(b) may have regard to the pattern of activities relating to the residential complex or the rental unit.”

6. I have to examine more closely the exception to “landlord” stated in section 2(1)(a) of the Act, namely, “….other than a tenant who occupies a rental unit in a residential complex and who permits another person to also occupy the unit or any part of the unit.” This exception was intended to exclude tenants who accepted other occupants, or roommates, in their rental unit from being considered landlords under the Act. In fact, the wording is instructive. The provision says a tenant who “occupies a rental unit in a residential complex and who permits another person to also occupy the unit or any part of the unit.” The wording implies parties who are living in the same residential unit. In this case, if we consider the house to be the residential complex, there are two residential units; the upstairs and the basement. The Landlord in this case is not residing in the same unit as the Tenants, and therefore, does not fall into the exception to the definition of “landlord” in section 2(1)(a).

7. In addition, sections 5 and 6 of the Act outline a number of exemptions from the Act. This landlord and tenant relationship does not fall into any of the exemptions outlined in those provisions, in particular, s. 5(i) states that the Act does not apply to

(i) Living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located;

The Landlord and Tenants do not share a bathroom or kitchen facility. In this case, the residential units and the residential complex do not fall into this above-mentioned exemption under the Act.

8. Since the Landlord, in this case, falls into the definition of “landlord” contained in section 2(1)(a), as I find in paragraph 6 above, and if the real substance of the transaction between the Tenants and the Landlord was one of landlord to tenant, and bearing in mind the purpose of the Act to provide protection to residential tenants, I find that there is a landlord/tenant relationship between the parties.

TSL-75551-16 (Re), 2016 CanLII 71276 (ON LTB)

4. The Landlord’s evidence is that all occupants of the complex share the kitchen and the two bathrooms. In addition, the Landlord testified that he heats up food in the kitchen, keeps food in the refrigerator, boils tea regularly—often as much as eight times per day, and keeps his dishes and utensils in the kitchen. The Tenant did not dispute, and indeed agreed with the Landlord’s evidence.

5. The Landlord further testified that, approximately eight years ago, he began spending three days of the week in the complex, sleeping overnight, and, when contractors are working in the complex he spends as much as a week in the complex. Indeed, the Landlord’s driver’s licence bears the address of the residential complex.

6. However, the Landlord also testified that his bedroom in the residential complex is not his principal residence as he and RS own a house in Scarborough. RS lives in the house in Scarborough as does the Landlord, when he is not staying in his unit in the complex.

7. The Landlord is a seventy-five-year-old man, who has had four surgeries on both eyes and stated that it is difficult for him to drive from his home in Scarborough to the residential complex. Further, RS testified that the Landlord’s family physician, pharmacy and hospital where he occasionally checks his eyes, are all located very close to the residential complex.

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11. I am also required to consider section 202 of the Act which directs me to examine the real substance of the interactions between the parties and their activities. Section 202 states:

In making findings on an application, the Board shall ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants and in doing so,

(a) may disregard the outward form of a transaction or the separate corporate existence of participants; and

(b) may have regard to the pattern of activities relating to the residential complex or the rental unit.

12. As well, and as with any exemption, the burden of proof rests on the person seeking to rely on the exemption. In this case, that is the Landlord.

13. Here, there is no dispute that there is a binding tenancy agreement between the parties. There is also no dispute that the Landlord and the Tenant share the kitchen and the bathroom in the manner described by the Landlord’s testimony, outlined above. So the real task is to ascertain the real substance of the Landlord’s pattern of activities relating to the residential complex in the face of the outward appearance of same.

14. In the end, and for the reasons that follow, in my opinion, the Landlord’s use of the residential complex is, on a balance of probabilities, merely for convenience and insufficient to remove the tenancy from the operation of the Act.

15. By the Landlord’s own admission, the bedroom that he uses in the residential complex is not his principal residence, notwithstanding that his Ontario driver’s licence so states. His principal residence is the house in Scarborough, which he shares with RS and where the Landlord receives personal mail; although Landlord testified that he also receives mail at the complex.